82740 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket Number: 231114–0267] 

RIN 0648–BL42 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Bering Sea and 

Aleutian Islands Halibut AbundanceBased Management of Amendment 80 

Prohibited Species Catch Limit 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

implement Amendment 123 to the 

Fishery Management Plan (FMP) for 

Groundfish of the Bering Sea and 

Aleutian Islands (BSAI) Management 

Area (BSAI FMP). This final rule 

amends the regulations governing limits 

on Pacific halibut (Hippoglossus 

stenolepis) (halibut) prohibited species 

catch (PSC) to link the halibut PSC limit 

for the Amendment 80 commercial 

groundfish trawl fleet in the BSAI 

groundfish fisheries to halibut 

abundance. This final rule is necessary 

to comply with the obligation in the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) that FMPs 

minimize bycatch to the extent 

practicable. It is also consistent with the 

Magnuson-Stevens Act’s National 

Standards. This final rule is expected to 

minimize halibut mortality, and it may 

result in additional harvest 

opportunities in the commercial halibut 

fishery, as well as to the subsistence and 

recreational fisheries. This final rule is 

intended to promote the goals and 

objectives of the Magnuson-Stevens Act, 

other applicable laws, and Amendment 

123 to the BSAI FMP. 

DATES: This rule is effective January 1, 

2024. 

ADDRESSES: Electronic copies of the 

Environmental Impact Statement (EIS) 

and the Social Impact Assessment (SIA) 

(collectively referred to as the 

‘‘Analysis’’) and the Record of Decision 

(ROD) prepared for this final rule may 

be obtained from https://

www.regulations.gov or from the NMFS 

Alaska Region website at https://

www.fisheries.noaa.gov/region/alaska. 

Electronic copies of Tribal 

consultation and listening summaries 

prepared for this action may be obtained 

from the NMFS Alaska Region website 

at: https://www.fisheries.noaa.gov/ 

alaska/consultations/alaska-fisheriestribal-consultation-documents-andworkgroup. 

Electronic copies of North Pacific 

Fishery Management Council (Council) 

documents referenced in this final rule 

are available on the Council website at 

https://npfmc.org. 

Electronic copies of International 

Pacific Halibut Commission (IPHC) 

documents referenced in this final rule 

are available on the IPHC website at 

https://iphc.int. 

FOR FURTHER INFORMATION CONTACT: 

Gretchen Harrington, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

published a Notice of Availability 

(NOA) for Amendment 123 in the 

Federal Register on November 9, 2022 

(87 FR 67665), with public comments 

invited through January 9, 2023. On 

December 9, 2022, upon realization that 

supporting documents were not 

publicly available, NMFS extended the 

comment period on the NOA for the 

FMP amendment to February 7, 2023, 

with a document (87 FR 75569, 

December 9, 2022) to allow a 60-day 

public comment period on the proposed 

action with all supporting documents 

available. NMFS published a proposed 

rule to implement Amendment 123 in 

the Federal Register on December 9, 

2022 (87 FR 75570) with public 

comment invited through January 23, 

2023. NMFS received 69 comment 

letters on the proposed Amendment 123 

and the proposed rule. Amendment 123 

was approved on March 7, 2023. A 

summary of the comments and NMFS’s 

responses are provided under the 

heading ‘‘Comments and Responses’’ 

below. Regulations governing U.S. 

fisheries and implementing the 

Magnuson-Stevens Act are located at 50 

CFR parts 600 and 679. 

Background 

The following background sections 

describe the Amendment 80 Sector and 

associated fisheries, halibut PSC 

management in the BSAI groundfish 

fisheries, BSAI Amendment 123, and 

the halibut abundance indices used to 

set halibut PSC limits for the 

Amendment 80 sector and this final 

rule. A detailed review of the provisions 

of Amendments 123, the proposed 

regulations to implement Amendment 

123, and the rationale for this action is 

provided in the preamble to the 

proposed rule and is briefly summarized 

in this final rule. This preamble uses 

specific terms (e.g., Amendment 80 

sector, directed fishing) that are 

described in regulation and in the 

preamble to the proposed rule. 

Additional information is provided in 

the preamble of the proposed rule, the 

Analysis, and the ROD, and we refer the 

reader to those documents for additional 

detail. 

Halibut PSC Management in the BSAI 

Groundfish Fisheries 

Halibut is an iconic, highly valued 

fish among commercial, recreational, 

charter, and subsistence fishermen. For 

the commercial fisheries that do not 

directly target halibut, NMFS regulates 

their PSC or bycatch of halibut. Every 

FMP must minimize bycatch (16 U.S.C. 

1853(a)(11)), to the extent practicable. 

The groundfish fisheries cannot be 

prosecuted without some level of 

halibut bycatch because of 

spatiotemporal overlap of groundfish 

and halibut. Regulations require the 

operator of any vessel fishing for 

groundfish in the BSAI to minimize the 

catch of prohibited species 

(§ 679.21(a)(2)(i)). 

Although halibut PSC results from all 

types of gear (i.e., trawl, hook-and-line, 

pot, and jig gear), halibut PSC primarily 

occurs in the trawl and hook-and-line 

groundfish fisheries. NMFS minimizes 

halibut bycatch to the extent practicable 

in the BSAI by: (1) establishing halibut 

PSC limits for trawl and non-trawl 

fisheries; (2) apportioning those halibut 

PSC limits to groundfish sectors, fishery 

categories, and seasons; and (3) 

managing groundfish fisheries to 

prevent PSC from exceeding the 

established limits. The following 

sections provide additional information 

on the process NMFS uses to establish, 

apportion, and manage halibut PSC 

limits in the BSAI. 

Halibut PSC limits in the groundfish 

fisheries provide a constraint on halibut 

PSC mortality and promote conservation 

of the halibut resource. Groundfish 

fishing is prohibited once a halibut PSC 

limit has been reached for a particular 

sector or season. 

The Council and NMFS have taken a 

number of management actions to 

minimize halibut bycatch to the extent 

practicable in the BSAI groundfish 

fisheries. Most recently, the Council 

adopted, and NMFS approved, 

Amendment 111 to the FMP in 2016 (81 

FR 24714, April 27, 2016). That 

amendment established the current 

halibut PSC limits for BSAI groundfish 

fisheries, which were considered to be 

an effective means to minimize bycatch 

to the extent practicable at that time. 

The current total annual halibut PSC 

limit for BSAI groundfish fisheries is 

3,515 metric tons (mt); from that total, 

1,745 mt are apportioned to the 

Amendment 80 sector, which is 

composed of non-pollock trawl vessels. 


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The BSAI trawl limited access sector, 

which is composed of all other trawl 

catcher/processor and trawl catcher 

vessels, is apportioned 745 mt. The 

BSAI non-trawl sector, which includes 

primarily hook-and-line catcher/ 

processors, is apportioned 710 mt. The 

remaining 315 mt are apportioned to the 

Community Development Quota (CDQ) 

program, which is composed of vessels 

fishing for CDQ groups. 

The Amendment 80 Sector and 

Associated Fisheries 

Fishing under the Amendment 80 

Program began in 2008 (72 FR 52668, 

September 14, 2007). The Amendment 

80 sector is comprised of trawl vessels, 

mostly owned by entities in the Seattle, 

Washington area, that participate in the 

BSAI groundfish fisheries other than the 

Bering Sea pollock fishery. The 

Amendment 80 species are identified in 

regulation (§ 679.2) as the following 6 

species: BSAI Atka mackerel, Aleutian 

Islands Pacific ocean perch, BSAI 

flathead sole, BSAI Pacific cod, BSAI 

rock sole, and BSAI yellowfin sole. The 

Amendment 80 Program allocates a 

portion of the total allowable catch 

(TAC) limits of these species between 

the Amendment 80 sector and other 

fishery participants. The Amendment 80 

Program also apportions crab and 

halibut PSC limits to constrain bycatch 

of these species while Amendment 80 

vessels harvest groundfish. 

At its inception, the Amendment 80 

Program allocated quota share (QS) for 

the six specified species based on the 

historical catch of these species by 

Amendment 80 vessels. The 

Amendment 80 Program allows and 

facilitates the formation of Amendment 

80 cooperatives among QS holders who 

receive an exclusive harvest privilege. 

This exclusive harvest privilege allows 

Amendment 80 cooperative participants 

to collaboratively manage their fishing 

operations and more efficiently harvest 

groundfish allocations while staying 

under PSC limits. 

As specified in Section 3.7.5.2 of the 

FMP and at § 679.21, NMFS annually 

establishes a halibut PSC limit of 1,745 

mt for the Amendment 80 sector. This 

halibut PSC limit is apportioned 

between the Amendment 80 

cooperative(s) and the Amendment 80 

limited access fishery according to the 

process specified at § 679.91. 

Amendment 80 cooperatives are 

responsible for coordinating members’ 

fishing activities to ensure the halibut 

PSC limit apportioned to the 

cooperative is not exceeded. Federal 

regulations at § 679.91(h)(3)(xvi) 

prohibit each Amendment 80 

cooperative from exceeding the halibut 

PSC limit specified on its annual 

Amendment 80 Cooperative Quota (CQ) 

permit. 

Of the four BSAI groundfish fishery 

sectors, the Amendment 80 sector 

receives the largest proportion of halibut 

PSC limits in the BSAI (roughly 50 

percent). Therefore, the Council 

recommended, and NMFS agrees, that 

Amendment 123 and this final rule 

should focus on the halibut PSC limit 

for the Amendment 80 sector. Several 

reasons drove this decision, as 

discussed below. 

When the Council took final action on 

Amendment 111 in December 2015 to 

reduce the PSC limits for all fishing 

sectors in the BSAI, the Council 

considered the methods available to the 

fisheries and the practicability of 

reducing halibut bycatch and mortality 

at that time. The preamble to the 

proposed rule to implement 

Amendment 111 noted that the Council 

and NMFS believed that more stringent 

PSC limit reductions than those 

proposed as part of Amendment 111 

were not practicable for the groundfish 

sectors at that time. However, at the 

same meeting, the Council noted that 

additional halibut bycatch reduction 

would be needed in the future and 

initiated an analysis of the means to link 

halibut PSC limits to halibut abundance, 

thereby indicating that additional efforts 

would be required beyond those 

established by Amendment 111, and 

utilized by the fisheries, to reduce 

halibut bycatch and mortality. From 

2015 (when the Council requested the 

Amendment 80 sector to proactively 

reduce halibut mortality ahead of 

Amendment 111’s regulatory PSC limit 

reductions expected to be implemented 

in 2016) through 2020, the Amendment 

80 sector reduced its halibut mortality 

to levels well below the PSC limit of 

1,745 mt established under Amendment 

111. Those reductions resulted in 

halibut mortality levels close to or 

below the PSC limits that are 

implemented by this rule based on 

halibut abundance estimates derived 

from current survey indices described 

below (see Section 3.4.1 of the 

Analysis). 

Amendment 123 

The Council recommended 

Amendment 123 in December 2021 to 

link the halibut PSC limit for the 

Amendment 80 sector to halibut 

abundance. In recommending 

Amendment 123, the Council intended 

to minimize halibut PSC to the extent 

practicable as required by section 

303(a)(11) and National Standard 9 of 

the Magnuson-Stevens Act and to 

continue achieving optimum yield in 

the BSAI groundfish fisheries on a 

continuing basis under National 

Standard 1. The Council then weighed 

and balanced the Magnuson-Stevens 

Act’s legal requirements and 

considerations, including the ten 

National Standards. Based on public 

comment, the EIS prepared pursuant to 

the National Environmental Policy Act 

(NEPA), and analyses under E.O.s and 

related laws, the Council recommended 

Amendment 123 to NMFS. 

This final rule implements 

Amendment 123 and requires the 

Amendment 80 sector to reduce halibut 

mortality at times of low halibut 

abundance. Achievement of these 

objectives will conserve the halibut 

resource by improving bycatch 

management and could result in 

additional harvest opportunities in the 

directed commercial, subsistence, and 

recreational halibut fisheries. The 

implementation of Amendment 123 and 

this final rule changes the annual 

process to determine the halibut PSC 

limit for the Amendment 80 sector to a 

PSC limit based on two indices of 

halibut abundance. An index of 

abundance is a relative measure of the 

abundance of the halibut population (or 

subpopulation—e.g., size) calculated 

using an accepted scientific data 

collection method (e.g., survey with 

standardized stations and bait) and 

calculation method for the indices. 

This action specifies halibut PSC 

limits for the Amendment 80 sector 

based on fishery-independent indices of 

halibut abundance derived from 

scientific survey data. The two survey 

indices recommended by the Council 

and implemented in this final rule are 

the International Pacific Halibut 

Commission (IPHC) setline survey index 

in Area 4ABCDE and the NMFS Alaska 

Fisheries Science Center (AFSC) Eastern 

Bering Sea (EBS) shelf trawl survey 

index. Throughout this preamble, the 

IPHC setline survey index in Area 

4ABCDE is referred to as the IPHC 

index, and the NMFS EBS shelf trawl 

survey index is referred to as the NMFS 

EBS index. The Council, its Scientific 

and Statistical Committee (SSC), and 

NMFS reviewed and recommended use 

of the IPHC index and the NMFS EBS 

index for this action, taking into account 

and noting limitations, assumptions, 

collection methods, and uncertainties in 

the Analysis. All information on the 

data and analysis is available to the 

public through meetings of the IPHC, 

the Council, or online (see ADDRESSES). 

Each year, the IPHC will calculate an 

index of halibut biomass in Area 

4ABCDE, which it will provide to 

NMFS. NMFS will categorize the 

resulting index into one of four 


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abundance index ranges: very low, low, 

medium, or high. Similarly, the AFSC 

will use the most recent results from the 

EBS shelf trawl survey to calculate an 

index of halibut biomass and NMFS will 

categorize the resulting index into one 

of two ranges: low or high. The value at 

the intercept of those separate indices in 

table 58 to part 679 will be the 

Amendment 80 sector’s halibut PSC 

limit for the following calendar year. 

NMFS has requested that the IPHC and 

AFSC provide the most recent annual 

index of halibut abundance, including a 

summary of the methods, data, and 

analysis used to calculate the index, to 

the Regional Administrator by 

December 1 (for the IPHC index), and 

October 1 (for the NMFS EBS index) of 

each year. NMFS will provide this 

information to the Council and the 

public at the Council’s regularly 

scheduled meetings. 

The Council and NMFS also 

considered that there has been relative 

stability of the halibut abundance 

indices in recent years and concluded 

that if there were sampling changes, or 

that no sampling occurred in a given 

year, the abundance value produced by 

the IPHC model would still be robust 

and could be used for abundance-based 

management of halibut prohibited 

species catch limits. As indicated in 

Section 2.7 of the Analysis, the Council 

clarified that the most recent survey 

data available should be used to set 

annual PSC limits in the absence of one 

or more years of survey data. 

NMFS EBS Index 

Annually, NMFS uses data from the 

EBS shelf bottom trawl survey (EBS 

survey) to estimate halibut biomass (mt) 

in the EBS (NMFS EBS index). The 

NMFS EBS index is calculated from 

halibut catch at the EBS survey stations 

and accounts for the total survey area. 

The EBS survey is conducted during the 

summer (May through August), and the 

processed data are made available 

during the fall, at which time the NMFS 

EBS index can be calculated. Results of 

the EBS survey provide up-to-date 

estimates of biomass, abundance, 

distribution, and population structure of 

groundfish populations in support of 

stock assessment and ecosystem forecast 

models that form the basis for 

groundfish and crab harvest advice. The 

EBS survey has been conducted 

annually since 1982 (with one exception 

in 2020) and has included the current 

number of stations (376) since 1987. 

Results from this survey are used to 

calculate a relative abundance (catch 

per unit effort) and size and/or age 

composition for halibut and many 

groundfish and crab species. Data 

collected on the survey are also used to 

improve understanding of life history of 

the fish and invertebrate species, as well 

as the ecological and physical factors 

affecting their distribution and 

abundance. In absence of a survey, 

NMFS will use the halibut abundance 

index calculated from the most recent 

EBS survey. 

IPHC Index 

The IPHC has collected and analyzed 

data through a robust scientific process 

(i.e., performed stock assessments) to 

determine the abundance of halibut 

coastwide from California to the Bering 

Sea. Each proposed survey undergoes 

scientific review and public inspection 

through a variety of channels. 

The IPHC analyzes and combines data 

from the IPHC’s Fishery-Independent 

Setline Survey (FISS), NMFS Eastern 

and Northern Bering Sea trawl survey, 

and Alaska Department of Fish and 

Game (ADF&G) Norton Sound trawl 

survey using a space-time model to 

create relative indices of halibut 

abundance and biomass in different 

units (e.g., numbers or weight) for use 

in the annual halibut stock assessment. 

The EBS shelf survey has different sizeselectivity than setline gear. To address 

this, the EBS shelf trawl survey is 

calibrated to the setline survey 

selectivity before it is incorporated into 

the calculation of the setline survey 

indices. Therefore, the setline survey 

does not index smaller halibut (mostly 

under 26 inches (66 cm) in fish length, 

called U26). Three important indices 

created annually include (1) a relative 

index of halibut abundance expressed as 

a number of fish that is used in the 

halibut stock assessment; (2) a relative 

index of halibut biomass for all sizes of 

fish expressed as weight per unit effort 

(WPUE) in in each IPHC Regulatory 

Area, including areas 4A, 4B, and 4CDE, 

which is also referred to as the IPHC 

index that is used in table 58 to part 679 

for the purpose of annually establishing 

Amendment 80 halibut PSC limits; and 

(3) a relative index of halibut biomass in 

each IPHC Regulatory Area for fish over 

32 inches (O32) in length overall that is 

used by the IPHC in the annual process 

to establish halibut mortality limits in 

each IPHC Regulatory Area. 

The IPHC uses a scientific approach 

to survey data analysis in the space-time 

model that has been peer reviewed by 

the IPHC’s Scientific Review Board 

(SRB). Similar space-time models are 

used to create the indices of abundance 

from NMFS Bering Sea trawl survey for 

the Pacific cod and Walleye pollock 

stock assessments. The IPHC index was 

selected by the Council as one 

dimension of table 58 to part 679. 

The space-time modeling approach 

incorporates information from nearby 

observations in space and time to 

improve the prediction of WPUE at a 

particular sampling station. Such an 

approach allows the IPHC to annually 

generate an index of halibut abundance 

and estimate biomass (with associated 

variance estimates) even when FISS 

sampling coverage is not complete in all 

geographic areas. This means that for 

areas which are not sampled directly by 

the FISS in a given year, a statistically 

valid index of abundance is available, 

although the quantified uncertainty 

around the index would likely increase. 

When assessing the robustness of the 

IPHC index during the development of 

Amendment 123, NMFS, the Council, 

and its SSC examined what would 

happen if there were changes in the 

surveys, including in a situation if no 

survey was to occur. They noted that the 

optimized use of the information from 

the sampled data reduces uncertainty 

and allows for the estimation of a 

consistent time-series over all years, 

even for areas that were not sampled in 

a particular year, with appropriate 

estimated uncertainty. Those estimates 

are the best scientific information 

available. 

The survey coverage has varied over 

time and has been adjusted for both 

scientific reasons (e.g., to enhance 

accuracy and precision) as well as to 

adjust for cost and logistical reasons. 

Annually, the FISS survey design 

represents a subset of the full survey 

design of 1890 stations coastwide. 

Station allocation among IPHC Areas, 

station density within Areas, and 

sampling effort (number of skates) per 

station in a given year are adjusted to 

meet the stated objectives to: (1) sample 

halibut for stock assessment and stock 

distribution estimation, (2) achieve 

long-term revenue neutrality, and (3) 

minimize removals, and assist others 

where feasible on a cost-recovery basis. 

The IPHC relies on its SRB to provide 

independent scientific peer review of 

the IPHC science process, including the 

annual FISS design development and 

refinement. The annual FISS design is 

routinely reviewed by the Commission 

and the public during the IPHC annual 

process. 

Regulatory Changes Implemented by 

This Action 

This final rule establishes a process to 

set the annual halibut PSC limit for the 

Amendment 80 sector. This rule 

specifies the following: 

• The halibut PSC limit for the 

Amendment 80 sector is determined 

annually; 


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• Halibut biomass estimates derived 

from the most recent IPHC index and 

the NMFS EBS index are applied to a 

specified set of ranges for each index to 

establish the halibut PSC limit for the 

Amendment 80 sector for the following 

year; 

• The halibut PSC limits range from 

1,745 mt when abundance is 

characterized as ‘‘high’’ for the IPHC 

index, down to 1,134 mt (35 percent 

reduction) when abundance is 

characterized as ‘‘very low’’ for the 

IPHC index; and 

• Each year the Amendment 80 sector 

halibut PSC limit is included in the 

annual harvest specifications for the 

BSAI. 

This rule revises § 679.21(b)(1), which 

establishes halibut PSC limits for the 

Amendment 80 sector. This rule adds 

§ 679.21(b)(1)(i)(A) through (C) to 

establish the process for determining the 

annual halibut PSC limits for the 

Amendment 80 sector, including 

Amendment 80 cooperatives and the 

Amendment 80 limited access fishery. 

This rule specifies that halibut indices 

derived from the most recent IPHC 

index and the NMFS EBS index be 

applied to a specified table of index 

ranges (table 58 to part 679). The value 

at the intercept of those indices within 

the table will be the halibut PSC limit 

for the Amendment 80 sector for the 

following year. 

This rule also revises § 679.91, which 

establishes Amendment 80 Program 

annual harvester privileges and the 

process for assigning halibut PSC limits 

to the Amendment 80 sector, 

cooperatives, and limited access fishery. 

This rule revises § 679.91(d)(1), (d)(2)(i), 

and (d)(3) to clarify that the amount of 

halibut PSC limit for the Amendment 80 

sector for each calendar year is specified 

and determined according to the 

procedure in § 679.21(b)(1)(i) by 

replacing the references to table 35 to 

part 679 in those paragraphs to this part 

that stipulates the annual fixed amount 

of 1,745 mt for the Amendment 80 

sector as a whole. 

This rule revises table 35 to part 679 

(Apportionment of Crab PSC and 

Halibut PSC between the Amendment 

80 and BSAI Trawl Limited Access 

Sectors) to indicate that the Amendment 

80 sector halibut PSC limit will be 

determined annually, rather than set at 

a fixed amount. 

This rule adds table 58 to part 679 

(Amendment 80 Sector Annual BSAI 

Pacific Halibut PSC Limits) to establish 

the IPHC index and the NMFS EBS 

index ranges in a table with the 

corresponding PSC limit at the 

intercepts of each index range. 

Comments and Responses 

NMFS received 69 comment letters on 

the Amendment 123 Notice of 

Availability and proposed rule. NMFS 

responds to 91 substantive comments 

below. 

NMFS received comment letters from 

12 individuals, 3 fishermen, 1 guide 

service, 2 CDQ groups, 36 industry 

support businesses, 4 Amendment 80 

companies, 7 industry associations, 2 

non-governmental organizations (NGO), 

and 1 anonymous submission. Of the 

seven industry associations, one 

represents the Amendment 80 sector, 

one represents Bering Sea crabbers, 

three represent halibut and sablefish 

fishermen, one represents fishermen in 

the Homer, Alaska area, and one 

represents Prince William Sound and 

Central Gulf of Alaska fishermen. Of the 

69 comment letters, 43 were opposed to 

the action and 26 were in support. 

Commenters who opposed the action 

were from the Amendment 80 sector, 

their industry association, members of 

the business community who provide 

support services to the Amendment 80 

sector, and one CDQ group. Comment 

letters that voiced support for the action 

came from individuals, fishermen in 

halibut fisheries, an industry association 

representing crabbers, those who 

represent a wide range of fishermen in 

the Cordova area, a charter company, 

two NGOs, and the anonymous 

submission. 

In responding to these comments, 

when NMFS refers to Amendment 123, 

unless otherwise noted, NMFS is 

referring to Amendment 123 and this 

final rule implementing Amendment 

123. There were no public comments 

asserting that the proposed rule is not 

consistent with Amendment 123. 

Numerous comments address 

information included in the draft 

Analysis prepared for this action. 

Throughout the responses below, when 

NMFS refers to the ‘‘Analysis,’’ NMFS is 

referencing the EIS including the SIA 

prepared for this action. NMFS refers to 

the Draft Environmental Impact 

Statement as the ‘‘draft Analysis.’’ 

Halibut Abundance Indices 

Comment 1: The current fixed halibut 

PSC limit fails to respond to varying 

abundances of halibut. The Council 

recommended Amendment 123 to the 

Secretary of Commerce as a responsive 

process to establish annual halibut PSC 

limits for the Amendment 80 sector 

based on halibut abundance. A PSC 

limit that responds to halibut 

abundance will allow halibut PSC limits 

to rise and fall based on abundance 

indices calculated with inputs from the 

IPHC fishery-independent setline survey 

and the annual NMFS trawl surveys in 

the BSAI area. We support NMFS 

implementing this action to reduce 

waste of the important halibut and bring 

the years-long process of crafting an 

equitable and scientifically supported 

abundance-based management plan to 

conclusion. 

Response: NMFS acknowledges this 

comment. The need for an abundancebased management system is laid out in 

the preamble to the proposed rule. 

Comment 2: In recommending the 

abundance indices included in 

Amendment 123, the Council 

contradicted recommendations from its 

own scientific peer-review body (i.e., 

SSC) that specifically cautioned against 

the use of the recommended metrics in 

April 2021. 

Response: In April 2021, the SSC 

expressed concern with the potential 

impact of year-to-year changes to survey 

or abundance estimation methods; 

however, the SSC did not call into 

question whether the indices were the 

best scientific information available. 

Instead, the SSC provided important 

insight into the various factors affecting, 

and affected by, use of the indices as 

proposed. The Council and NMFS 

considered the SSC’s recommendation 

of standardizing the indices of 

abundance as relative values rather than 

the absolute values included in this 

final rule as described in Section 2.8 of 

the Analysis. As with every scientific 

process, survey and abundance 

estimation methods are continuously 

reviewed and improved. Occasionally 

changes to survey and abundance 

estimation methods may affect the scale 

of an absolute value, whereas relative 

calculations (trends) are scaled such 

that changes are relative to the period 

being evaluated (e.g., percent change). 

The Council and NMFS 

acknowledged that there are tradeoffs 

with using absolute values versus using 

standardized relative values. We chose 

to use absolute values to improve 

transparency and public understanding 

because the alternative (standardized 

relative values) would make it more 

difficult for stakeholders to read 

reported survey indices in a given year 

and map those onto a table to anticipate 

the resulting Amendment 80 PSC limit. 

The absolute values for the abundance 

indices are dependent on the 

assumptions of the survey design and 

analysis, whereas a standardized 

relative index could show less year-toyear variability. The Council and NMFS 

recognized that, with absolute values, 

historical index values could change in 

the future because of potential 

improvements to index calculation 


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methods. For example, if there are 

improvements to understanding specific 

parameters used in calculating the index 

and those parameter values change (e.g., 

increased precision in quantifying area 

sampled results in an overall increase in 

area sampled, or improvements to the 

length to weight ratio) could change the 

calculation method and historical index 

values. But by using easily understood 

absolute values, this approach creates 

greater transparency to the public and 

meets the objectives for the program set 

by the Council, recognizing that survey 

values could change in the future. This 

is similar to how other PSC limits are 

set in the BSAI. 

Comment 3: NMFS ignored the SSC 

advice regarding the use of absolute or 

relative indices of halibut abundance. 

The SSC stated that any change to the 

survey methods, area to which the 

survey applies, or methods and models 

used to convert the survey data into 

abundance values could result in 

changes in the Amendment 80 bycatch 

limits that result not from actual 

changes in halibut abundance but from 

changes in the survey design and 

methods used to calculate halibut 

abundance. 

Response: Model methods and 

surveys are expected to change over 

time and rely on scientifically accepted 

and statistically robust methods that 

consider changes in bias and precision 

in estimates to provide the best 

scientific information available for 

estimating halibut abundance indices. 

The Council and NMFS considered the 

SSC advice and selected the absolute 

index values because the combination of 

those two values adequately met the 

purpose and need for the action, is 

based on sound scientific survey 

methodology, and is transparent to 

regulated entities and the public. Yearto-year changes in indices of abundance 

due to methodology changes would 

have to be substantial enough to cross 

the breakpoints specified in table 58 to 

part 679 to influence the PSC limit set 

for the Amendment 80 sector each year, 

and this is a possibility in the future as 

the indices adjust due to changes in 

halibut abundance. This method 

accomplishes the purpose and need for 

the action by tying PSC limits to halibut 

abundance using the best scientific 

information available provided by the 

survey indices. Should issues arise in 

the future, the Council and NMFS will 

review the PSC limits established by 

this action during the periodic 

Amendment 80 program review or at 

any time that the Council wishes to 

initiate an action to consider an 

alternative approach as part of its 

normal process. 

Comment 4: NMFS’s determination of 

the breakpoints in the lookup table to 

establish the halibut PSC limits that 

apply to the Amendment 80 sector is 

arbitrary, unexplained, and lacks a 

rational basis. The Analysis states that 

the breakpoints employed in these 

lookup tables were determined by visual 

inspection of relative trends in the 

survey indices historically. 

Response: The breakpoints identifying 

the different abundance states for the 

two indices of halibut abundance 

included in table 58 to part 679 reflect 

the cumulative input and decisions 

made throughout the 8 years of 

development of this action. The purpose 

of this action is to link the halibut PSC 

limit for the Amendment 80 sector to 

halibut abundance. As explained in the 

Analysis and the proposed rule, the 

breakpoints in the lookup table span 

recent trends in indices of halibut 

abundances, and the PSC limits in table 

58 to part 679 reflect the Council’s 

decision to establish a PSC limit from 0 

to 35 percent below the existing limit, 

depending upon abundance. 

The Council recommended, and 

NMFS agrees, that the chosen 

breakpoints reasonably represent the 

desired abundance states (high, 

medium, low, very low) in light of 

observed past survey trends. Based on 

IPHC survey data, the period of 1997 

through 2002 is categorized as high 

abundance; 2003 through 2016 as 

medium abundance; and 2017 to 

present as low abundance. The very low 

abundance state captures the potential 

situation where abundance indices drop 

below historical levels. 

The breakpoints and accompanying 

PSC limits established by Amendment 

123 were selected to balance the goals 

of linking halibut PSC to abundance, 

reducing bycatch, and avoiding burdens 

that would make the rule impracticable. 

Any impacts that might arise from 

setting the abundance breakpoints at the 

selected levels were also addressed in 

consideration of the PSC limits set 

under the different alternatives. A 

greater impact from setting a breakpoint 

at a higher or lower level would affect 

the practicability of a given PSC limit. 

For example, if the breakpoints were set 

even lower at the ‘‘very low’’ state, such 

that this state would only occur when 

halibut abundances were 

catastrophically low, a much higher 

reduction to the PSC limit might be 

appropriate. 

The Council recommended, and 

NMFS agrees, that the breakpoints 

included in this action are appropriate 

to accomplish the action’s objectives. 

These conclusions are the result of the 

extensive analysis, public input, and 

consideration by the Council and NMFS 

that occurred during the development of 

this action. 

Comment 5: NMFS’s use of the IPHC 

index in this action would 

impermissibly delegate to the IPHC the 

critical responsibilities of (1) conducting 

a survey for determining the abundance 

of halibut and (2) establishing the IPHC 

index for the abundance of that halibut, 

which is then used directly, by 

regulation, to determine the annual 

halibut PSC limit for the Amendment 80 

sector. NMFS has directly linked its 

halibut PSC management for the 

Amendment 80 sector to actions and 

decisions of the IPHC that cannot be 

reviewed or otherwise second-guessed 

by NMFS. NMFS therefore proposes to 

delegate to the IPHC its authority to 

undertake the discretionary nonministerial function of assessing, 

analyzing, and determining the 

abundance of halibut in a manner that 

requires the exercise of judgment. 

Response: The Council designed, and 

this final rule implements, an annual 

process for NMFS to determine 

Amendment 80 halibut PSC limits using 

halibut abundance indices provided by 

the IPHC and the AFSC. Each year, 

NMFS will rely on the IPHC index and 

the NMFS EBS index as the best 

available scientific information on 

halibut abundance. 

In this action, NMFS relies on the 

IPHC to produce the IPHC index 

because the IPHC collects and analyzes 

scientific data necessary to estimate 

halibut abundance throughout its range. 

That is the IPHC’s responsibility under 

Article III of the Convention for the 

Preservation of the Halibut Fishery of 

the Northern Pacific Ocean and Bering 

Sea (Convention). NMFS participates in 

the IPHC annual process; the Regional 

Administrator of NMFS’s Alaska Region 

serves as one of three U.S. 

Commissioners to the IPHC and is a 

voting member of the North Pacific 

Fishery Management Council. Both 

indices used in this action were 

reviewed by the Council’s SSC and 

recommended by the Council. By 

relying on the IPHC to provide this type 

of scientific information, NMFS is not 

delegating management authority for 

any aspect of the groundfish fisheries to 

the IPHC. NMFS manages, and will 

continue to manage, the BSAI 

groundfish fisheries. In furtherance of 

that effort, NMFS will use information 

analyzed by the IPHC. Specifically, 

NMFS will use the IPHC index for 

halibut abundance, in conjunction with 

the NMFS EBS index, to apply the 

appropriate PSC limit. The Council and 

NMFS determined the halibut PSC 

limits established by this action are 


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necessary to achieve the program goals. 

NMFS will publish the PSC limit in the 

annual harvest specifications. That is 

clearly a management action undertaken 

by NMFS, and not the IPHC. 

The IPHC independently conducts 

halibut surveys, collects data, and 

carefully models halibut abundance. 

The IPHC would continue these 

activities to estimate halibut abundance, 

whether or not NMFS implements 

Amendment 123. This action relies on 

two indices of halibut abundance 

derived from fishery-independent 

surveys which NMFS will use to 

determine the annual halibut PSC limit 

for the Amendment 80 sector. The IPHC 

index and the NMFS EBS index are 

described above in the preamble to this 

final rule. The two abundance indices 

are in table 58 to part 679, which will 

be used by NMFS to determine the 

Amendment 80 sector’s halibut PSC 

limit each year. This process 

incorporates the best available scientific 

information available from both IPHC 

and AFSC each year. 

The Magnuson-Stevens Act’s mandate 

is to base decision-making on the best 

scientific information available, not on 

scientific information generated only by 

NMFS. NMFS commonly relies on and 

incorporates data, derived products, and 

modeling output from other entities. For 

instance, NMFS uses the annual 

Chinook salmon abundance estimate 

from the State of Alaska, which uses an 

established 3-System Index of Chinook 

salmon abundance in western Alaska, to 

determine the Chinook salmon PSC 

limit and performance standard 

applicable to vessels participating in the 

Bering Sea pollock fishery. 

Comment 6: The IPHC’s annual 

abundance determinations will do the 

following: (1) bypass all U.S. laws that 

would otherwise be applicable if NMFS 

were making these determinations and 

any form of oversight by NMFS (or any 

other U.S. Government agency); and (2) 

not be subject to any of the standards for 

scientific integrity, such as peer review 

or a process for data review that would 

otherwise apply to the actions of U.S. 

agencies. 

Response: NMFS disagrees. The IPHC 

promulgates regulations governing the 

halibut fishery under the Convention. 

The IPHC’s regulations applicable to the 

United States are subject to approval by 

the Secretary of State with the 

concurrence of the Secretary of 

Commerce. The North Pacific Halibut 

Act (Halibut Act), 16 U.S.C. 773c(a)–(b), 

provides the Secretary of Commerce 

with general responsibility for carrying 

out the Convention and the Halibut Act, 

including the authority to adopt 

regulations necessary to carry out the 

purposes and objectives of the 

Convention. The Halibut Act, 16 U.S.C. 

773c(c), also provides the Council with 

authority to develop regulations, 

including limited access regulations, 

that are in addition to, and not in 

conflict with, IPHC regulations. 

Regulations the Council recommends 

may be implemented by NMFS only 

after approval by the Secretary of 

Commerce and in compliance with all 

applicable laws. 

The IPHC’s scientists produce halibut 

abundance indices through a robust 

process that involves the public and 

NMFS. IPHC scientists are highlytrained, independent specialists. Their 

work is regularly reviewed by the IPHC 

Scientific Review Board, and an 

external scientific review is periodically 

conducted. All findings of peer reviews 

are openly discussed in public meetings 

and published online (see ADDRESSES). 

Their models and abundance indices 

have been subject to peer review and 

will continue to be subject to peer 

review that is similar or identical to the 

peer review of data and models 

produced by NMFS staff or from other 

Federal agencies. 

Based on advice from the SSC, the 

Council and NMFS concluded that the 

IPHC’s annual setline indices are the 

best scientific information available to 

estimate the abundance of Pacific 

halibut. As with any Federal action, the 

best scientific information available 

might not stem from the work of a single 

agency or organization. Through the 

processes that have led to the 

development of Amendment 123 and 

this action, the public has had an 

opportunity to examine and assess the 

scientific underpinnings of the Federal 

action, and NMFS has fully considered 

associated public comments. 

Comment 7: It is arbitrary and 

capricious to base halibut PSC limits on 

an abundance index that does not reflect 

or correlate with halibut encounter rates 

in the Amendment 80 sector. The 

Amendment 80 sector’s halibut 

encounter rates are not significantly 

correlated with either of the halibut 

abundance indices used in the proposed 

action to set annual halibut PSC limits. 

The halibut encounter rates are highly 

variable year-to-year. The likelihood of 

the Amendment 80 sector foregoing 

considerable groundfish catch based on 

the PSC limits established in the 

proposed action is also likely to be 

highly variable year-to-year. In October 

2019, the SSC emphasized that a result 

of the analysis is that the groundfish 

fleet’s ability to avoid halibut bycatch is 

poorly related to indices of halibut 

abundance. 

Response: The purpose of this action 

is to link the halibut PSC limit for the 

Amendment 80 sector to halibut 

abundance, which will ensure that the 

Amendment 80 sector’s use of halibut 

PSC does not become a larger 

proportion of the overall halibut PSC in 

the BSAI in years of lower halibut 

abundance. The Council and NMFS 

considered a wide range of different 

abundance indices to use in the process 

for linking halibut abundance to halibut 

PSC limits during the development of 

this action. The SSC determined that the 

most scientifically appropriate indices 

for linking PSC limits to abundance are 

the NMFS EBS index and the IPHC 

index. 

The Council and NMFS considered 

this issue extensively: Section 3.4.4 of 

the Analysis discusses a comparison of 

the Amendment 80 halibut encounter 

rates and mortality with survey trends 

(see ADDRESSES). Early in development 

of Amendment 123 (in October 2017), 

the Council reviewed a discussion paper 

that showed a high correlation between 

the NMFS EBS index of halibut biomass 

and the non-pelagic trawl (NPT) sector 

catch per unit effort (CPUE). However, 

over time, new information became 

available that changed our 

understanding of the correlation 

between the NMFS EBS index and the 

Amendment 80 encounter rates. As 

noted in Section 3.4.4 of the Analysis, 

there are many reasons why it would 

not be expected for Amendment 80 

halibut PSC encounter rates to be 

consistently and positively correlated 

with fishery-independent indices of 

halibut biomass, including different 

temporal and spatial coverage, degree of 

halibut intermingling with target 

species, variable groundfish aggregation 

behavior across years, gear selectivity, 

and fishery behavior such as targeting of 

different species by the various fleets 

and companies within the sector. 

The Analysis also recognizes that it is 

possible that higher encounter rates are 

at least partially attributable to 

environmental conditions (e.g., 

comingling of species in an ocean 

environment with less temperature 

variation that could help separate 

species and guide time and area 

targeting of individual species). Section 

5.3.2.3.2 of the Analysis discusses 

potential impacts of changing 

environmental conditions on the 

practicability of the Amendment 80 

sector to avoid bycatch, particularly as 

it relates to warmer Bering Sea water 

temperatures and spatial patterns of 

target fisheries. 

Regardless of these uncertainties, the 

purpose of this action is to link the 

halibut PSC limit for the Amendment 80 


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sector to halibut abundance. The 

Council and NMFS believe that the use 

of the NMFS EBS and IPHC indices 

present the best means to accomplish 

this objective, taking into account the 

information described above. The 

Analysis thoroughly evaluates this 

dynamic, and this information was 

considered in the Council’s and NMFS’s 

decision-making, including the 

information raised by the SSC in 

October 2019 that the groundfish fleet’s 

ability to avoid halibut is poorly related 

to indices of abundance. In short, the 

Council and NMFS considered the 

information in the decision–making 

process. 

Magnuson-Stevens Act Compliance 

Comment 8: The proposed action 

violates section 303(a) of the MagnusonStevens Act that requires an amendment 

be necessary and appropriate for the 

conservation and management of a 

fishery because (1) it is arbitrary to base 

halibut PSC limits for the Amendment 

80 sector on a metric of abundance that 

is negatively correlated to halibut 

encounter rates in the fishery, and (2) 

the proposed action will not constrain 

halibut PSC in other fisheries. 

Response: NMFS disagrees. The 

Council recommended and this final 

rule implements this action to link 

halibut PSC limits to levels of halibut 

abundance. The rationale for why it is 

appropriate to base halibut PSC limits 

for the Amendment 80 sector on the 

indices of halibut abundance included 

in this action is thoroughly discussed in 

the response to Comment 26. The 

Council and NMFS chose to focus this 

action on the Amendment 80 sector due 

to the high percentage of PSC assigned 

to this sector, as explained in Comment 

13, and because other actions were 

underway or planned to address halibut 

bycatch in other fisheries, as explained 

in response to Comment 16. 

Comment 9: NMFS has not 

demonstrated that this action is 

necessary or appropriate for the 

conservation and management of the 

Amendment 80 sector, and this 

Magnuson-Stevens Act requirement is 

not reflected in the purpose and need 

statement for this action. 

Response: In section 3(5) of the 

Magnuson-Stevens Act, Congress 

defined ‘‘conservation and 

management’’ broadly. Minimizing 

halibut bycatch by a groundfish fishery 

to the extent practicable satisfies that 

definition, and is required and 

authorized by section 303 (see sections 

303(a)(11) and (b)(3)). This action is a 

modification of an existing conservation 

and management measure necessary to 

limit the amount of halibut mortality 

caused by the Amendment 80 sector 

fisheries. The principal purpose of this 

action is to link the halibut PSC limit for 

the Amendment 80 sector to halibut 

abundance to reduce halibut bycatch to 

the extent practicable under National 

Standard 9 and improve conservation of 

the halibut fishery by reducing halibut 

PSC limits at times of low halibut 

abundance. 

The Amendment 80 sector is managed 

under the BSAI FMP. The MagnusonStevens Act requires NMFS to manage 

the BSAI groundfish fisheries to 

minimize all bycatch to the extent 

practicable. Bycatch minimization is a 

central policy and mandate of the 

Magnuson-Stevens Act as specified in 

section 301(a)(9), and section 

303(a)(11)(A) and (b)(14). Through 

National Standard 9, Congress directed 

that all FMPs and regulations developed 

pursuant to such FMPs must be 

consistent with the requirement to 

minimize bycatch to the extent 

practicable. 

Comment 10: NMFS failed to prepare 

a legally sufficient Fishery Impact 

Statement. 

Response: NMFS disagrees. NMFS 

prepared a Fishery Impact Statement 

that addresses all required components 

as specified in Magnuson-Stevens Act 

section 303(a)(9) and is included in 

Section 7.3 of Analysis (see ADDRESSES). 

Comment 11: NMFS and the Council 

failed to explain how biological 

constraints and human needs were 

balanced, or priorities were established, 

under the Magnuson-Stevens Act 

implementing regulations. 

Response: NMFS disagrees. NMFS 

and the Council explained how 

biological constraints and human needs 

are balanced and how priorities were 

established throughout the preamble to 

the proposed rule, the Analysis, and 

ROD (see ADDRESSES). See Section 2.4 

and Appendix 1 of the Analysis and the 

ROD for details on how NMFS and the 

Council explained the biological 

constraints and human needs were 

balanced and how priorities were 

established and evaluated during the 

decision-making process. 

Comment 12: The proposed action 

cannot and will not prevent halibut PSC 

from becoming a larger proportion of 

total halibut removals in the BSAI 

because it does not constrain the PSC 

limits in any other BSAI groundfish 

fishery. 

Response: NMFS agrees that this 

action does not modify PSC limits for 

other non-Amendment 80 BSAI 

groundfish fisheries and does not limit 

halibut catch or bycatch in the directed 

halibut fishery or other groundfish 

fisheries that contribute to the total 

halibut removals in the BSAI. Other 

NMFS actions have done so or may do 

so in the future. This action is expected 

to ensure that the Amendment 80 

sector’s use of halibut PSC does not 

become a larger proportion of the 

overall halibut mortality in the BSAI in 

years of lower levels of halibut 

abundance. Amendment 80 PSC limits 

established in future years will be 

influenced by indices of halibut 

abundance according to the levels 

specified in table 58 to part 679. 

Therein, this action will reduce 

Amendment 80 halibut PSC in years of 

low halibut abundance, which is an 

improvement over the static PSC limit 

of 1,745 mt. This action focuses on the 

Amendment 80 fleet because of that 

sector’s relatively large contribution to 

total halibut PSC in the BSAI 

management area. 

The halibut PSC limits for all fisheries 

are specified according to regulations at 

§ 679.21(b). Over the time period 

analyzed, the Amendment 80 sector 

accounted for 49.6 percent of the total 

PSC limits in the BSAI. The next closest 

fleet was the BSAI Trawl Limited 

Access Sector with 21.2 percent of the 

total PSC limit. See Table 1–1 of the 

Analysis. The Council and NMFS chose 

to focus this action on the Amendment 

80 sector, because (1) at lower halibut 

abundance levels, the Amendment 80 

sector’s static PSC limit of 1,745 mt 

becomes a far larger proportion of the 

overall halibut removals in the BSAI 

than any other sector’s PSC limit, as 

explained in response to Comment 12 

and (2) other actions were underway or 

planned to address halibut bycatch in 

other fisheries or, the sectors not 

included in those actions receive a 

relatively small proportion of the 

halibut PSC limit. The current status of 

those actions is explained in response to 

Comment 16 below. The existing PSC 

limits for other fishery sectors will not 

increase; however, any sector can 

harvest halibut up to that sector’s PSC 

limit in any given year and actual 

halibut bycatch can vary from year to 

year under the respective PSC limits. 

Accordingly, this action is expected to 

reduce halibut PSC at lower levels of 

halibut abundance for the Amendment 

80 sector. 

Comment 13: This action is not 

consistent with Magnuson-Stevens Act 

implementing regulations at 

§ 600.305(b)(3) because the action is not 

expected to positively impact halibut 

stock conservation or result in an 

increased allocation to the directed 

halibut fleet in Area 4. The only stated 

objective of this action is to impose 

constraints and associated costs on the 

Amendment 80 sector by establishing 


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halibut PSC limits that are expected to 

constrain the fishery at times of low 

halibut abundance. 

Response: NMFS disagrees. The 

regulatory guidelines for the MagnusonStevens Act’s National Standards 

provide that each FMP should identify 

what the FMP is intended to 

accomplish. Among other things, those 

objectives should address the problems 

of a particular fishery and should be 

clearly stated, practicably attainable, 

and framed in understandable terms. 

The National Standard guidelines refer, 

at § 600.305(b)(3), to objectives of the 

FMP, which provide the context within 

which the Secretary of Commerce will 

judge the consistency of an FMP’s 

conservation and management measures 

with the National Standards. The BSAI 

FMP objectives are found at Section 

2.2.1 of the FMP and are not changed by 

this action. 

Further, under the Magnuson-Stevens 

Act National Standard guidelines, 

fisheries management objectives should, 

among other things, be practicably 

attainable. This action is consistent with 

the BSAI FMP’s objectives. Comments 

and responses below relating to 

National Standard 9 further address 

issues raised with the practicability of 

the PSC limits established by this 

action. 

This action has clear, understandable, 

and attainable objectives. The Analysis 

and the proposed rule clearly state that 

the purpose of this action is to link the 

halibut PSC limit for the Amendment 80 

sector to halibut abundance. This will 

change the previously static halibut PSC 

limit to one that may fluctuate annually 

in response to indices of halibut 

abundance. This approach will 

minimize bycatch to the extent 

practicable and prevent Amendment 80 

PSC from becoming a significantly 

larger proportion of total halibut 

removals in the BSAI when halibut 

abundance decreases to specified 

thresholds. The achievement of the 

objective is measurable because the 

proposed Amendment 80 sector’s 

annual PSC limits will be linked to a 

range of the halibut abundance levels 

depicted clearly in table 58 to part 679. 

The BSAI FMP promotes conservation 

of the halibut resource by establishing 

halibut PSC limits in the groundfish 

fisheries. Reduction of halibut bycatch 

is a conservation benefit, as detailed on 

page 265 of the Analysis. As explained 

in response to Comment 53, NMFS must 

consider a range of economic and noneconomic impacts including impacts to 

the halibut stock conservation and 

potential benefits to users of the halibut 

resource, including the directed halibut 

fleet in Area 4. Though NMFS must 

consider these factors, it is not a 

requirement that a bycatch reduction 

measure result in measurable positive 

impacts to the overall bycatch stock or 

to the catch allocations of the directed 

halibut fishery. In Section 5 of the 

Analysis, NMFS extensively evaluated 

the potential impacts on the halibut 

stock and directed halibut fishery. In 

light of the numerous variables that 

affect halibut biomass, this action may 

contribute to improvements to the 

halibut biomass, but that is not an 

expected result. It is expected that the 

conservation benefits achieved by this 

measure are more likely to result in 

greater use by the directed fishery, 

rather than improvement of the overall 

stock, but the result may not be binary, 

and whether this expected result occurs 

does not affect the analysis for this 

action. 

Imposing costs is not an objective of 

this action. NMFS would prefer that 

bycatch minimization occur with little 

cost. However, Congress recognized that 

imposing costs may be necessary and 

directed NMFS to minimize bycatch to 

the extent practicable. Practicability 

determinations are made on a case-bycase basis for each fishery given the 

circumstances at the time. Additional 

comments and responses regarding the 

economic impacts of this action are 

included under the ‘‘Economic Impacts’’ 

heading below. 

Comment 14: To the extent the 

proposed action has an objective of 

either allocating halibut to the directed 

fishery or conserving halibut by 

reducing bycatch, the objective is not 

practically attainable. It is not 

reasonably certain that (1) overall 

halibut bycatch will be reduced as a 

result of this action, (2) the IPHC will 

increase catch limits in Area (4, or 3) 

any increase in catch limits will result 

in an increased commercial catch in the 

directed halibut fishery. To the extent 

conservation is a goal of the proposed 

action, NMFS has concluded that the 

proposed action has little or no 

conservation benefit to the halibut 

stock. 

Response: See the response to 

Comment 34 for a summary of the 

conservation benefits of this action. See 

the response to Comment 12 for a 

discussion of overall halibut bycatch. 

Allocation or re-allocation of halibut is 

not an objective of this action, as 

described in the responses to comments 

under the National Standard 4 heading. 

Management of the directed halibut 

fishery and expected impacts of this 

action are addressed in the responses to 

comments under the Directed Halibut 

Fishery heading. 

Comment 15: NMFS premises the 

proposed action on the supposed need 

to achieve equity in the specific 

circumstance when ‘‘the IPHC setline 

survey results fall into the very low 

abundance state.’’ But this is arbitrary 

because the proposed action addresses 

all abundance states and substantially 

reduces the Amendment 80 sector’s 

halibut PSC limit under the status quo. 

The halibut stock has never been in a 

‘‘very low’’ abundance state, which 

means the proposed action is chasing a 

phantom and doing so in an overly 

broad way by reducing the halibut PSC 

limit in all abundance states. 

Response: The proposed action is 

based on Congress’s direction to 

minimize bycatch to the extent 

practicable while ensuring that that the 

action is consistent with all ten National 

Standards and other requirements of the 

Magnuson-Stevens Act. The result from 

linking halibut PSC limits to halibut 

abundance is a more equitable one than 

the current static PSC limit because, 

when abundance drops, a static level of 

halibut PSC represents a greater 

proportion of all halibut fishing 

mortality. 

The Analysis considered various 

halibut abundance levels, not just those 

which have already been known to 

occur, in order to link Amendment 80 

PSC limits to those various abundance 

levels. If the halibut stock never enters 

a very low level of abundance, the 

correlating PSC limit would not be 

imposed. However, including that limit 

in the event such a level occurs is 

reasonable. Including the very low 

abundance state ensures the 

Amendment 80 sector will minimize its 

halibut bycatch at all levels of halibut 

abundance and, if those abundance 

levels should drop to the very low state, 

the PSC limits become lower as well. At 

the Very Low/Low and Very Low/High 

index states, the proposed action would 

reduce the Amendment 80 halibut PSC 

limit by 35 percent from the current 

limit. Should the IPHC index fall into 

the very low abundance state, the 

Council and NMFS concluded that this 

halibut PSC limit reduction would be 

important to promote conservation and 

equitable use of the halibut stock and 

consistent with the abundance-based 

process for establishing directed halibut 

fishery catch limits. These measures are 

not overly broad; they apply in very 

specific conditions that will be known 

to the Amendment 80 sector before the 

fishing season begins. When abundance 

is categorized as high, the PSC limit will 

not be changed from current limits. See 

Comment 4 for discussion on the 

development of the breakpoints. In the 

period considered in the Analysis, the 


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annual Amendment 80 sector PSC limit 

would have been set at the maximum 

PSC limit of 1,745 mt in the years from 

1998 through 2002 and 2008, had this 

action been in place. In years from 2003 

through 2007 and 2009 through 2021, 

the Amendment 80 sector PSC limit 

would have been set at levels ranging 

from 1,309 mt to 1,571 mt representing 

a 10 percent to 25 percent reduction 

from the maximum PSC limit 

established by this action. 

Comment 16: Unlike the approach 

taken with BSAI FMP Amendment 111, 

the proposed action is a fragmentary 

and not a comprehensive approach to 

halibut and groundfish management. 

Halibut is managed on a coastwide 

basis, and halibut bycatch occurs in 

multiple fisheries and sectors across 

that wide range. Yet, the proposed 

action would myopically regulate the 

halibut bycatch of just one fishery sector 

in one area, and any benefit that might 

result from the proposed action is itself 

uncertain because any reallocation of 

halibut to the directed fishery hinges 

entirely on future unknown actions of 

the IPHC. This is a fragmentary 

approach to fisheries management and 

in violation of § 600.305(b)(3). 

Response: The BSAI FMP addresses 

halibut bycatch comprehensively, 

setting PSC limits for a variety of and 

sectors, as required by the MagnusonStevens Act and National Standard 

guidelines. This action adjusts the 

annual process to establish the 

Amendment 80 sector’s PSC limit for 

halibut. The Council and NMFS 

recognize that there are ongoing and 

future plans to take or consider taking 

similar actions for other sectors, and 

that does not diminish or fragment the 

FMP’s overall approach to bycatch 

management. 

The Council established a 

comprehensive approach to halibut 

bycatch management, and it is routine 

for the Council to evaluate the scope of 

proposed adjustments based upon the 

problem statement and information 

available at the time. The scope of this 

action, which is applicable only to the 

Amendment 80 sector, was selected in 

February 2020 after considering the 

issues identified in the problem 

statement, the amount of halibut 

bycatch in each fishery sector, input at 

numerous public meetings, and other 

proposed actions that would reduce 

halibut PSC in other fishery sectors. 

Other recent actions to reduce halibut 

bycatch in the BSAI include BSAI FMP 

Amendment 116 (83 FR 49994, October 

4, 2018) and BSAI FMP Amendment 

122 (88 FR 53704, August 8, 2023), 

which reduced halibut bycatch in the 

non-Amendment 80 trawl fishery 

(commonly known as the trawl limitedaccess, or ‘‘TLAS’’, fishery) and Pacific 

cod trawl catcher vessel fishery, 

respectively. The Council decided, and 

NMFS agrees, that a step-wise approach 

by sector allows for a simplified and 

more efficient approach to adjusting 

halibut PSC management measures in 

the BSAI. 

Comment 17: The Analysis reflects a 

carefully considered balance by the 

Council of competing considerations 

under the National Standards. In 

reaching its conclusion, the Council 

carefully weighed all the information 

before it, including the benefits to the 

directed fishery, the need for 

conservation of the halibut resource, the 

practicability of bycatch reductions, and 

the potential impacts to Amendment 80 

if halibut PSC limits implemented by 

this action were to constrain the fishery 

in future years. Based on the sum total 

of that information, the Council struck 

a middle ground by rejecting 

alternatives that considered setting PSC 

limits at levels higher than and lower 

than the halibut PSC limits included in 

this action. 

Response: NMFS acknowledges this 

comment. 

Comment 18: NMFS should uphold 

and approve the careful balance the 

Council struck. As the proposed rule 

correctly recognizes, Amendment 123 is 

consistent with all the National 

Standards, but most relevantly National 

Standards 1, 4, 8, and 9. It is also 

consistent with long-neglected 

principles of environmental justice, 

Administration guidance, and other 

relevant legal and statutory principles. 

Response: NMFS acknowledges this 

comment. 

Comment 19: NMFS must inform the 

Council of its interpretation of the 

Magnuson-Stevens Act’s National 

Standards as required by the MagnusonStevens Act implementing regulations at 

§ 600.305(a)(2). The proposed action is a 

novel approach to fishery management 

and is particularly reliant upon 

interpretations of terms in the National 

Standards that are not defined in statute 

or regulation, such as, but not limited 

to, the terms ‘‘reasonably calculated to 

promote conservation’’ and ‘‘fair and 

equitable’’ in National Standard 4 and 

‘‘minimize bycatch to the extent 

practicable’’ in National Standard 9. 

NMFS did not provide the Council with 

the Secretary of Commerce’s 

interpretation of these or any National 

Standard terms during the deliberations 

that resulted in the proposed action. In 

fact, the Council received contrary 

guidance. Without clear and appropriate 

required guidance, the Council did not 

receive the information required to 

lawfully develop and propose an action, 

as required by NMFS’s regulations. 

Response: NMFS disagrees. The 

Secretary of Commerce published 

guidelines to the ten National Standards 

at §§ 600.305 through 600.355. The 

regulation cited in the comment, 

§ 600.305(a)(2), states the purpose of the 

guidelines and is satisfied by 

publication of the guidelines 

themselves. The phrases cited as 

undefined by the comment are not 

specialized terms of art, and separate 

regulatory action to interpret terms 

within the guidelines is not necessary 

prior to implementing this action. 

NMFS has not applied the National 

Standards in any novel way in this 

rulemaking. For more discussion of the 

National Standards, see Section 7.1 of 

the Analysis (see ADDRESSES) and the 

responses to comments under the 

National Standard headings below. 

Comment 20: NMFS should 

disapprove Amendment 123 because: 1) 

it is not practicable under National 

Standard 9, consistent with its decision 

on Amendment 75 to the BSAI FMP (68 

FR 52142, September 2, 2003); 2) NMFS 

did not prepare an adequate analysis, 

consistent with its decision on 

Amendment 23 to the Pacific Coast 

Groundfish FMP (76 FR 27508, May 11, 

2011); and 3) the negative economic 

impacts of Amendment 123 on the 

Amendment 80 sector consistent with 

its decision on Amendment 18 (57 FR 

23231, June 3, 1992). 

Response: NMFS disagrees. The 

Secretary of Commerce reviews each 

FMP amendment independently for 

consistency with all applicable law at 

the time the Council transmits the 

amendment for review by to the 

Secretary of Commerce. A decision on a 

past amendment is not binding in 

perpetuity, particularly in the context of 

new circumstances and requirements; 

therefore, the Secretary of Commerce’s 

decision to disapprove or partially 

approve Amendments 75, 23, and 18 are 

not relevant to this action. 

National Standard 1 

Comment 21: This action is not 

consistent with National Standard 1 

because achieving optimum yield (OY) 

is not actually an objective of the 

proposed action and the action 

decreases the likelihood of achieving 

OY because halibut PSC limits included 

in this action at times of low halibut 

abundance are likely to constrain 

Amendment 80 fishing activity. 

Response: NMFS disagrees. The 

Council and NMFS determined that 

Amendment 123 and this final rule are 

consistent with National Standard 1 

because, under all the PSC limits 


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established by this action, the BSAI 

groundfish fisheries will achieve OY on 

a continuing basis as described in 

Section 5.3.2.3.1 of the Analysis (see 

ADDRESSES). National Standard 1 states 

that conservation and management 

measures shall prevent overfishing 

while achieving, on a continuing basis, 

the OY from each fishery for the U.S. 

fishing industry. A potential result of 

this action is that the Amendment 80 

sector’s harvests of groundfish could be 

constrained at the low and very low 

states of halibut abundance; however, 

this does not materially compromise the 

ability of the BSAI groundfish fisheries 

to continue harvesting between 1.4 and 

2.0 million mt of groundfish annually. 

The phrase ‘‘achieving, on a continuing 

basis’’ is defined in the national 

standard guidelines at 

§ 600.310(e)(3)(i)(B). Achieving OY does 

not place a requirement that every 

individual regulatory action must result 

in reaching OY. Rather, this standard is 

applied to the FMP as a whole. 

The purpose of this action is to link 

halibut PSC limit for Amendment 80 

sector to halibut abundance to minimize 

bycatch to the extent practicable. The 

Council and NMFS recognized in the 

Purpose and Need statement (see 

Section 1.2 of the Analysis) that NMFS 

must ensure the BSAI groundfish 

fisheries will continue to achieve 

optimum yield as required by the 

Magnuson-Stevens Act. The Analysis 

demonstrates that, after NMFS 

implements this final rule, those 

fisheries will do so. 

Comment 22: This action makes it less 

likely that the BSAI groundfish fisheries 

will continue to achieve OY on a 

continuing basis because there are 

reasonably foreseeable circumstances 

that were not considered by NMFS. In 

2009 and 2010, the BSAI groundfish 

fisheries did not achieve OY because the 

total harvest was 1,335,116 mt and 

1,354,662 mt, respectively, which is 

lower than the low range of OY at 1.4 

million mt. The Amendment 80 sector 

fisheries harvest approximately 12 to 25 

percent of the overall BSAI groundfish 

fisheries annually and generally at a 

higher percentage in years of low 

pollock abundance. This action is likely 

to constrain Amendment 80 sector 

harvests in years of low halibut 

abundance, and NMFS failed to 

consider the combined impacts of this 

action with the reasonably foreseeable 

event that pollock stocks could be low 

again in future years. 

Response: Under National Standard 1 

guidelines, OY is a long-term average 

amount of desired yield from a stock, 

stock complex, or fishery. This means 

that, even if a fishery were to fail to 

reach harvest levels within the OY range 

for a few years over multiple decades of 

fishing, NMFS’s management of that 

fishery would still be consistent with 

National Standard 1. The Analysis notes 

that the annual groundfish harvest can 

be highly variable across years for a 

variety of reasons (e.g., changing ocean 

conditions, variability in recruitment or 

prey field, fisheries interactions, etc.) 

and that may result in years where catch 

is not within the OY range. However, in 

light of the regulations explaining 

National Standard 1’s terms and 

purpose, the failure to harvest 

groundfish within the OY range for two 

out of several years of fishing does not 

mean that NMFS’s management of the 

fishery fails to comply with National 

Standard 1. 

The Analysis notes that the Council 

considered 2016 through 2020 to be the 

appropriate time period over which to 

evaluate halibut PSC use because it 

reflects Amendment 80 sector 

operations under their Halibut 

Avoidance Plan and deck sorting along 

with other available tools to avoid 

halibut and reduce halibut mortality. 

The example in the Analysis of a year 

without Amendment 80 harvest is 

meant to illustrate the conclusion that 

possible Amendment 80 harvest 

reductions due to PSC constraints do 

not cause an inability to achieve OY on 

a continuing basis. See Section 5.3.2.3.1 

of the Analysis for further discussion on 

OY. 

Comment 23: NMFS’s novel analytical 

approach to evaluating OY presumes 

that the Amendment 80 sector could be 

eliminated by the proposed action 

without running afoul of National 

Standard 1. There is nothing in the 

history of the development of OY for the 

BSAI groundfish fisheries that supports 

the notion that OY should be achieved 

by eliminating one of the fisheries. 

Response: NMFS does not expect this 

action to eliminate the Amendment 80 

sector. The hypothetical example of 

achieving OY without contribution by 

Amendment 80 was used to illustrate 

why NMFS expects that, after this 

action, the BSAI groundfish fisheries 

will continue to achieve OY. See 

Comments 21 and 22 above. 

NMFS expects that the halibut PSC 

limits established in table 58 to part 679 

may prevent the Amendment 80 sector 

from fully harvesting TACs in years 

with low halibut abundance; however, 

changes in fishing behavior and 

effective use of available bycatch 

reduction tools, including halibut 

excluders, halibut avoidance plans, and 

deck sorting, could help mitigate 

potential negative economic impacts. 

National Standard 2 

Comment 24: NMFS fails to consider 

the best scientific information available 

(contrary to National Standard 2) to 

assess reasonably foreseeable future 

environmental conditions that are likely 

to constrain harvests for the 

Amendment 80 sector in a manner that 

will result in a failure to achieve OY on 

a consistent basis. Such conditions 

include, but are not limited to, 

constraints on salmon bycatch that 

could limit the pollock fishery (a major 

contributor of the groundfish harvests), 

constraints due to low crab stock 

abundance that will likely result in 

tighter restrictions on crab PSC limits 

and/or new closed areas for Amendment 

80 trawling, and increasing variability 

in oceanic and atmospheric conditions 

that scientists predict will shift flatfish 

and other Amendment 80 target species 

and result in more target species moving 

to areas where the Amendment 80 

sector is not allowed to fish (e.g., the 

Northern Bering Sea Research Area). 

Response: The Council and NMFS 

determined that Amendment 123 and 

this final rule are consistent with 

National Standard 2, as explained in 

Section 7.1 of the Analysis. National 

Standard 2 states that conservation and 

management measures shall be based 

upon the best scientific information 

available. NMFS used the best scientific 

information available to assess the likely 

impacts of this action and assessed 

future environmental conditions in this 

action. NMFS considered the 

cumulative effects of this action in the 

context of other reasonably foreseeable 

future actions in Section 5.8 of the 

Analysis. The Council is in the early 

stages of developing new potential 

actions to address bycatch of salmon 

and crab in BSAI groundfish fisheries, 

including the potential additional 

actions referenced in this comment; 

however, the Council has not yet made 

a recommendation to NMFS. Actions 

are considered reasonably foreseeable if 

some concrete step has been taken 

toward implementation, such as a 

Council recommendation or NMFS’s 

publication of a proposed rule. Actions 

only ‘‘under consideration’’ are not 

generally included because they may 

change substantially before adoption or 

may not be adopted at all. They 

therefore cannot be reasonably 

described, predicted, or foreseen. See 

the response to Comment 64 for a 

discussion of NMFS’s consideration of 

changes in oceanic and atmospheric 

conditions. 

Comment 25: NMFS did not use the 

best available information to evaluate 

the effects of the action on the halibut 


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stock because many tables in the 

Analysis do not include data available 

from 2020 and 2021. By not including 

catch and revenue information from 

these years in the Analysis, NMFS has 

failed to consider the expanded harvest 

opportunities available in Area 4 to the 

directed halibut fleet in 2021 and 2022. 

In 2022, the Area 4 halibut fishery 

received the largest catch allocation in 

10 years, and catch data, available on 

NMFS’s website, show a trend of 

decreasing utilization in the Area 4 

halibut fishery that is not considered at 

all in the Analysis or anywhere else in 

the record. NMFS also inconsistently 

picks and chooses when it will use 

certain datasets in both the Analysis and 

the proposed rule. This inconsistent use 

of data is arbitrary and represents a 

failure to use the best scientific 

information available. 

Response: NMFS evaluated the data 

used in the Analysis. Some tables in the 

Analysis do not include data from 2020 

through 2022 because it is likely that 

such data were significantly affected by 

the COVID–19 pandemic and, therefore, 

less illustrative of historical trends and 

future expectations. For example, 

allocation and utilization of halibut by 

the directed fishery may have been 

significantly affected by the pandemic. 

See Comments 27, 42, and 60 for further 

discussion about why these data sets 

were chosen. 

Comment 26: The proposed action is 

arbitrary and capricious because it fails 

to address the likely redistribution of 

halibut and use the best available 

information from both the EBS and the 

northern Bering Sea trawl surveys to 

establish its abundance-based bycatch 

limit. 

Response: NMFS disagrees. After 

substantive and lengthy consideration 

during the public Council process, the 

Council recommended and this action 

implements an annual process for 

determining the Amendment 80 sector 

halibut PSC limit that links the PSC 

limit to halibut abundance using two 

indices of halibut abundance. The two 

indices selected (IPHC index and the 

NMFS EBS index) were determined by 

the Council’s SSC to be the best 

scientific information available. Data 

from the northern Bering Sea trawl 

survey is an input into the model used 

to generate the IPHC index, so the data 

are incorporated into the process for 

establishing the Amendment 80 halibut 

PSC limits implemented under this 

action; however, it was not selected as 

a primary index upon which to base the 

annual PSC limits. A summary of the 

NMFS EBS index and the IPHC index 

are provided above in the preamble to 

this final rule as well as a detailed 

description is provided in Section 1.6 of 

Analysis. 

Comment 27: By providing an 

‘‘average’’ estimate of costs for the entire 

sector based on a limited set of years, 

not incorporating estimates of all direct 

and indirect costs, and not examining 

the true potential costs of the proposed 

action, NMFS presents an inaccurate 

assessment of the impacts that does not 

consider all of the best scientific 

information available and is otherwise 

arbitrary. 

Response: NMFS disagrees. NMFS 

recognizes that the impacts of this 

action on the Amendment 80 sector and 

their efficiency and profitability will 

vary by year, depending on 

environmental conditions, economic 

conditions, and other variables. This 

variability is analyzed and accounted 

for in the development of this action. 

The Council and NMFS chose to use the 

2016 through 2019 dataset because it is 

more likely to be predictive of potential 

future costs as explained in Section 

5.3.2 of the Analysis. 

National Standard 3 

Comment 28: NMFS provides no 

rational explanation for how the halibut 

stock is managed as a unit throughout 

its range consistent with National 

Standard 3. National Standard 3 

requires that stocks be managed as a 

unit throughout its range to the extent 

practicable. National Standard 3 also 

encourages NMFS to coordinate with 

other governments, agencies, and 

councils to develop an FMP for any 

stock overlapping jurisdictions. 

Response: Management of the halibut 

stock is not regulated by the MagnusonStevens Act or its National Standards, 

including National Standard 3. The 

Convention for the Preservation of the 

Halibut Fishery of the Northern Pacific 

Ocean and Bering Sea and the Northern 

Pacific Halibut Act of 1982 established 

the governing body (IPHC) and 

processes for managing halibut 

throughout its range. Section 5(c) of the 

Halibut Act provides that the Council 

may develop regulations within U.S. 

waters over halibut provided that they 

are not in conflict with the IPHC’s 

regulations and that they are approved 

by the Secretary of Commerce. 

The IPHC manages Pacific halibut as 

a single stock between California and 

the upper reaches of its range in Alaska. 

This action does not change the direct 

management of the halibut stock in any 

way. Rather, this action modifies 

management of the BSAI groundfish 

fisheries and links the halibut PSC limit 

for the Amendment 80 sector to halibut 

abundance. As explained below, 

through the BSAI groundfish FMP, 

NMFS manages groundfish stocks 

consistent with National Standard 3. 

Comment 29: The proposed action 

would manage groundfish stocks very 

differently depending on who is fishing 

them in violation of National Standard 

3. The BSAI yellowfin sole fishery 

would have more restrictive halibut PSC 

provisions when being fished by trawl 

vessels in the Amendment 80 sector 

than in the TLAS fishery. 

Response: The Council and NMFS 

determined that Amendment 123 and 

this final rule are consistent with 

National Standard 3, as explained in 

Section 7.1 of the Analysis. National 

Standard 3 states that, to the extent 

practicable, an individual stock of fish 

shall be managed as a unit throughout 

its range, and interrelated stocks of fish 

shall be managed as a unit or in close 

coordination (16 U.S.C. 1851(a)(3)). 

National Standard 3 guidelines explain 

how to structure appropriate 

management units for stocks and stock 

complexes (§ 600.320). The Guidelines 

state that the purpose of the standard is 

to induce a comprehensive approach to 

fishery management (§ 600.320(b)). The 

guidelines define ‘‘management unit’’ as 

‘‘a fishery or that portion of a fishery 

identified in an FMP as relevant to the 

FMP’s management objectives,’’ and 

state that the choice of a management 

unit ‘‘depends on the focus of the FMP’s 

objectives and may be organized around 

biological, geographic, economic, 

technical, social, or ecological 

perspectives’’ (§ 600.320(d)). National 

Standard 3 does not require an FMP to 

treat different sectors the same because 

they fish the same stock, and it does not 

preclude setting bycatch limits that 

differ by sector. 

The BSAI halibut PSC limit is 

assigned to three sectors and the CDQ 

Program. The halibut PSC limit is 

apportioned to the Amendment 80 

sector to execute all their fisheries, not 

only yellowfin sole. The Amendment 80 

cooperative decides how, among the 

fisheries that are open for directed 

fishing, to use their PSC limit. In years 

where there is an Amendment 80 

limited access fishery, halibut PSC is 

assigned to the Amendment 80 limited 

access fishery, and it is apportioned into 

PSC allowances for trawl fishery 

categories according to the procedure in 

§ 679.21(b)(1)(ii)(A)(2) and (3). The 

BSAI trawl limited access sector’s 

halibut PSC limit is also apportioned 

into PSC allowances for trawl fishery 

categories according to the procedure in 

§ 679.21(b)(1)(ii)(A)(2) and (3). 

Due to the high PSC use by the 

Amendment 80 sector, the Council 

chose to focus this action only on the 

Amendment 80 sector; see response to 


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Comment 13 for details. For more 

information about halibut management 

and bycatch in the different fishery 

sectors, see the preamble for the 

proposed rule (87 FR 75570, December 

9, 2022). See the response to Comment 

16 for an explanation of other actions to 

reduce halibut PSC limits in other 

fisheries. 

National Standard 4 

Comment 30: NMFS fails to determine 

whether the proposed action is an 

allocation. NMFS’s failure to determine 

whether the proposed action is an 

allocation as a threshold matter violates 

the Magnuson-Stevens Act and is 

arbitrary. NMFS muddles the record 

with statements suggesting that the 

proposed action is and is not an 

allocation. 

Response: NMFS disagrees. National 

Standard 4 states that conservation and 

management measures shall not 

discriminate between residents of 

different states and provides guidance 

regarding fair and equitable distribution 

of fishing privileges if it becomes 

necessary. NMFS does not consider this 

action to be an allocation of fishing 

privileges under National Standard 4 

but has provided analysis to show that, 

even if it were an allocation, it is 

consistent with National Standard 4. To 

be an allocation of fishing privileges, the 

National Standard 4 guidelines state 

there must be a direct and deliberate 

distribution of the opportunity to 

participate in a fishery among 

identifiable, discrete user groups or 

individuals. While management 

measures can have indirect allocative 

effects, only those that result in direct 

distribution of fishing privileges are 

allocations for purposes of National 

Standard 4. The Analysis states that, 

under the set of alternatives considered, 

there is no direct allocation or 

assignment of fishing privileges to the 

directed halibut fishery participants, nor 

any other allocation under National 

Standard 4. 

At times, the Analysis may refer to a 

‘‘PSC allocation’’ e.g., Analysis at page 

242 (‘‘When a PSC allocation is 

reached’’). In that context, allocation 

carries its plain meaning 

(apportionment or distribution) which is 

distinct from National Standard 4’s 

usage, i.e., direct and deliberate 

distribution of fishing privileges. NMFS 

acknowledges that it might have been 

able to avoid some confusion had it 

used the terms ‘‘limit’’ or 

‘‘apportionment’’ where appropriate in 

that context. 

Comment 31: The proposed action 

violates National Standard 4 because it 

allocates or assigns fishing privileges 

among various U.S. fishermen, but this 

allocation is not ‘‘[f]air and equitable to 

all such fishermen.’’ Any allocation of 

halibut from the Amendment 80 sector 

to the directed halibut fishery is not fair 

or equitable because the negative effect 

on the Amendment 80 sector is 

extremely disproportionate to any 

benefit that could be realized by the 

directed halibut fishery. NMFS also fails 

to provide any interpretation of the term 

‘‘fair and equitable,’’ and its application 

of that term in its analysis is, at best, 

cursory and conclusory. NMFS’s 

assertion that this proposed action 

provides a fair and equitable allocation 

is both baseless and unexplained. 

Response: As explained above (see 

response to Comment 30), this action is 

not an allocation under National 

Standard 4. But even if it were, it is fair 

and equitable and consistent with 

National Standard 4. As explained in 

the response to Comment 12, the reason 

for focusing on the Amendment 80 

sector is due to the high proportion of 

the halibut PSC used in that sector. 

While the action could impose 

regulatory costs to one sector, the actual 

cost borne does not determine whether 

the action is fair, equitable, reasonably 

calculated to promote conservation, or 

provides an excessive share to anyone. 

NMFS determined that the costs were 

reasonable when balanced with the 

purpose and need, and the conservation, 

social, management, and environmental 

impacts. NMFS also determined that the 

action is fair and equitable because this 

action links halibut PSC limit for the 

Amendment 80 sector to levels of 

halibut abundance. Allocation of halibut 

to the directed halibut fishery is not the 

purpose of this action, and this action 

makes no such allocation. The Analysis 

makes clear that under the existing 

management regulations applicable to 

the directed halibut fleet, the IPHC 

establishes the annual catch limits for 

the directed halibut fishery. Any benefit 

to the directed halibut fishery is a 

potential, secondary benefit to the 

action. See the response to Comments 

32 through 38 below for further 

discussion on the consistency of the 

alternatives with National Standard 4. 

Comment 32: Amendment 123 will 

begin to address conservation and 

equity issues in halibut management 

and will provide benefits to coast-wide 

North Pacific stakeholders and 

communities in both the short- and 

long-term. The amendment allows more 

of the harvesters of BSAI halibut to 

share in its conservation by establishing 

abundance-based measures for catch 

limits. It also provides much needed 

equity for Alaskans who rely on halibut 

for not only income but also food 

security, cultural traditions, and many 

other aspects of community well-being 

that cannot be captured in economic 

data alone. This is a more equitable 

mechanism for allocating conservation 

responsibilities and, therefore, 

complements the intent of National 

Standard 2 and National Standard 4. 

Response: NMFS agrees. The 

problematic nature of the no-action 

alternative for directed halibut fishery 

participants under halibut low 

abundance conditions is recognized in 

the Council’s purpose and need 

statement. The action alternatives 

propose a range of halibut PSC limit 

reductions under high to low abundance 

conditions. Amendment 123 includes 

reductions under all but high IPHC 

index conditions and, in that case, 

proposes no change to the halibut PSC 

limit, thus providing equality for all 

users at times of reduced halibut 

abundance. Between 1998 and 2016, the 

PSC limit for the Amendment 80 sector 

would have ranged between 1,745 mt 

and 1396 mt (20% reduction). In years 

after 2016 the IPHC index shows a 

decline in overall halibut abundance in 

Area 4 that has resulted in notable 

harvest reductions among the direct 

halibut fishery participants and would 

have resulted in a 25% reduction in the 

Amendment 80’s PSC limit had this 

action been in place. 

Comment 33: The proposed action 

cannot be reasonably expected to result 

in any increase in harvest opportunities 

in Area 4 because the IPHC establishes 

catch limits in Area 4. If there are any 

increases in abundance in Area 4, there 

is no guarantee that the directed halibut 

users in Area 4 would benefit. By 

relying on such contingencies over 

which NMFS has no control, and that 

are not subject to the Magnuson-Stevens 

Act, the purpose and need statement is 

irrational, insufficient, uncertain, and 

unlawful. 

Response: This comment 

mischaracterizes the action’s purpose 

and need. The purpose of this action is 

to link the halibut PSC limit for the 

Amendment 80 sector to halibut 

abundance. This action will ensure that 

the Amendment 80 sector’s use of 

halibut PSC does not become a larger 

proportion of the overall halibut PSC in 

the BSAI in years of lower levels of 

halibut abundance which will promote 

conservation of the halibut stock. This 

action does not allocate halibut harvest 

opportunities in Area 4. Halibut 

management is explained in Section 4.4 

of the Analysis. The purpose and need 

statement includes the possible indirect 

result that the action may provide 

additional harvest opportunities in the 

directed halibut fisheries. However, that 


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would be an ancillary effect if it 

occurred, not the primary purpose of the 

action. Though there is much 

uncertainty about the magnitude and 

timing of possible benefits to the 

directed halibut fishery in Area 4, it is 

reasonable to recognize the possibility 

of these indirect benefits in the purpose 

and need statement for this action. 

Comment 34: NMFS provides no 

interpretation of the term ‘‘reasonably 

calculated to promote conservation’’ 

and otherwise fails to rationally explain 

why the proposed action is ‘‘reasonably 

calculated to promote conservation.’’ 

The Analysis contradicts NMFS’s 

conclusion that this action will promote 

conservation, because the proposed 

action will have no effect on the 

conservation of the halibut stock. 

Amendment 123 is not consistent with 

National Standard 4 because it does not 

improve conservation of halibut. 

Response: The National Standard 

guidelines define the ‘‘promotion of 

conservation’’ at 50 CFR 

600.325(c)(3)(ii), and the definition 

includes actions that encourage a 

rational, more easily managed use of the 

resource. An action may also promote 

conservation (in the sense of wise use) 

by optimizing the yield in terms of size, 

value, market mix, price, or economic or 

social benefit of the product. 

The Council and NMFS determined 

that Amendment 123 and this final rule 

are consistent with National Standard 4, 

as explained in Section 7.1 of the 

Analysis. NMFS notes that the Analysis 

indicates that none of the alternatives 

will affect overall halibut spawning 

stock biomass, which is measured 

coastwide from California to Alaska. 

Each action alternative, however, would 

set the Amendment 80 sector’s halibut 

PSC limit at or below the current level 

depending on indices of halibut 

abundance. The reduction of halibut 

bycatch mortality is a conservation 

measure; by definition, lower halibut 

PSC limits will result in lower halibut 

mortality, which is expected to provide 

benefits to the coastwide halibut stock, 

the directed halibut fisheries, or both. 

Given typical past IPHC practice, NMFS 

expects that much of the biomass 

conserved by this measure will accrue 

to the directed commercial halibut 

fishing limits. Later harvest of 

conserved halibut does not affect this 

action’s conservation benefit. The 

IPHC’s action with regard to halibut 

conserved under this action is neither 

necessary nor detrimental to this action 

or its analysis. Given the economic and 

cultural value of halibut and the 

competing interests of the commercial, 

recreational, sport, and subsistence 

users, the Council and NMFS’s decision 

to create a bycatch management 

program that restricts bycatch further 

when halibut abundance is low 

represents a more rational approach to 

managing the halibut resource and 

promotes its wise use. 

In addition, the halibut ‘‘stock’’ is 

distinct from and broader than the 

‘‘spawning stock biomass’’ and is 

defined in the Magnuson-Stevens Act at 

16 U.S.C. 1802(42) (‘‘stock of fish’’) as 

a species, subspecies, geographical 

grouping, or other category of fish 

capable of management as a unit. 

Conserved fish may benefit the stock 

even if they do not immediately 

increase the spawning stock biomass, 

including by greater survival of small 

halibut, i.e., under 26 inches in size, 

which are expected to have longer-term 

positive impacts on the stock and 

directed fishing. 

Comment 35: It is unfair that under 

the static PSC limit of 1,745 mt, when 

BSAI halibut abundance declines PSC 

in Amendment 80 fisheries can become 

a larger proportion of total halibut 

removals in the BSAI, particularly in 

Area 4CDE, and can reduce the 

proportion of halibut available for 

harvest in directed halibut fisheries. 

This has had disproportionately 

negative impacts on local participants in 

the directed halibut fishery. 

This action would see PSC limits rise 

and fall based on the abundance of 

halibut. This is a compromise that 

establishes a measure of social equity 

and resource conservation. Bering Sea 

halibut fishermen will see immediate 

benefits of increased directed catch 

limits which will support Bering Sea 

communities. 

Response: NMFS acknowledges the 

support for this action. The purpose and 

need statement recognizes that when 

BSAI halibut abundance declines, 

halibut PSC in Amendment 80 fisheries 

can become a larger proportion of total 

halibut removals in the BSAI, 

particularly in Area 4CDE, and can 

reduce the proportion of halibut 

available for harvest in directed halibut 

fisheries. The full purpose and need 

statement is available in Section 1.2 of 

the Analysis (see ADDRESSES). NMFS 

agrees that Bering Sea halibut fishermen 

may benefit from this action; however, 

the timing and magnitude of those 

benefits are uncertain. 

Comment 36: NMFS fails to explain 

why it must take action to achieve 

‘‘equity’’ or how this action improves 

equity. 

Response: The Council recommended, 

and NMFS is implementing, this action 

to link Amendment 80 halibut PSC 

limits to levels of halibut abundance. 

This action reduces bycatch of halibut 

to the extent practicable and also 

reflects equitable considerations 

between groundfish fishermen and 

directed halibut users. This action will 

reduce Amendment 80 halibut PSC 

limits when halibut abundance 

decreases, which is analogous to what 

typically happens to the harvest limits 

of the direct halibut fishery when 

abundance decreases. This action will 

reduce the disparity between the 

directed halibut fishery and the 

Amendment 80 sector by implementing 

PSC limits for the Amendment 80 sector 

that fluctuate according to halibut 

abundance. This will mean that, 

annually, indices of halibut abundance 

will be used to establish the 

Amendment 80 PSC limit. The IPHC 

will also use indices of halibut 

abundance to establish the directed 

halibut fishery catch limits. This action 

may benefit the stock and it may result 

in increased opportunities for directed 

halibut fishing among the recreational, 

sport, subsistence, and commercial 

users. 

This action minimizes halibut bycatch 

in the Amendment 80 sector to the 

extent practicable. There is no specific 

requirement that a bycatch 

minimization measure achieve ‘‘equity.’’ 

Equitable considerations, however, 

serve varying roles in the development 

of actions under the Magnuson-Stevens 

Act. For example, section 303(a)(14) of 

the Magnuson-Stevens Act requires 

FMPs to allocate any fishery harvest 

restrictions or recovery benefits fairly 

and equitably among the commercial, 

recreational, and charter fishing sectors 

in the fishery. Similarly, under National 

Standard 4 and its guidelines, 

allocations of fishing privileges must be 

fair and equitable. Equitable 

considerations are also relevant to 

determinations made under E.O. 12866 

and E.O. 13563. It was well within the 

Council’s purview to require lower 

bycatch levels during times of low 

abundance given that the directed 

fishery is expected to have lower 

harvest levels at times of low 

abundance. The Council and NMFS 

view this as a more equitable approach. 

The term ‘‘equitable’’ in this case has its 

common meaning and does not carry a 

particularized statutory or regulatory 

definition. 

Comment 37: The purpose and need 

statement does not mention ‘‘equity.’’ 

Thus, NMFS’s stated justification for the 

proposed action (i.e., that it is 

‘‘equitable’’) arbitrarily and unlawfully 

fails to satisfy or otherwise address the 

stated purpose and need. It is arbitrary 

for NMFS to conclusively determine 

that the proposed action is ‘‘fair and 

equitable’’ (presumably on National 


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Standard 4 grounds) without even 

determining whether its proposed 

action constitutes an allocation. 

Response: NMFS does not consider 

this action to be an allocation as 

described in response to Comment 30. 

The Council’s purpose and need 

statement for this action is included in 

Section 1.2 of the Analysis. This action 

links the halibut PSC limit for the 

Amendment 80 sector to levels of 

halibut abundance. Section 5 of the 

Analysis addresses how this action 

achieves such conservation through the 

minimization of the Amendment 80 

sector’s halibut bycatch to the extent 

practicable and improves consistency 

with the IPHC’s management of halibut. 

This final action also achieves an 

equitable outcome because, at 

decreasing levels of halibut abundance, 

NMFS expects the IPHC to reduce total 

halibut mortality limits which will 

directly influence the directed halibut 

catch limits and under this action the 

Amendment 80 sector’s PSC limit will 

also be reduced. This is in contrast to 

the previous static PSC limit of 1,745 

mt, which meant that the Amendment 

80 sector’s PSC constituted a greater 

proportion of overall halibut mortality 

in the BSAI when halibut abundance 

decreased. This was exemplified in 

2018 when the Amendment 80 halibut 

PSC limit accounted for 49 percent of 

the IPHC’s 3,559 mt halibut mortality 

limit for Area 4. By diminishing that 

effect, this action conserves halibut and 

also achieves a more fair and equitable 

outcome. 

Comment 38: This proposed action 

violates National Standard 4 because it 

discriminates against residents of 

different states by establishing a 

regulation that would limit the 

harvesting activities of only one sector, 

and effectively one ‘‘person’’ (the 

Amendment 80 cooperative), which is 

incorporated in only one state. 

Amendment 80 would be the only 

sector or fishery subject to an 

abundance-based PSC limit. 

Response: NMFS disagrees. While the 

Amendment 80 cooperative may be 

incorporated in Washington, the 

residency of the Amendment 80 

cooperative or any of its members, 

employees, or associated people is not 

the basis of this action. This action is a 

conservation and management measure, 

applicable to the entire Amendment 80 

sector without regard to state of 

incorporation or residency. The 

Analysis on pages 17 and 85 and the 

response to Comment 16 explain the 

rationale behind focusing this action on 

the Amendment 80 sector. 

National Standard 5 

Comment 39: NMFS did not consider 

efficiency in the utilization of fishery 

resources, as National Standard 5 

requires. The Analysis describes the 

various ways in which the proposed 

action would reduce efficiency. The 

proposed action increases inefficiency 

and cost and results in a negative net 

benefit to the Nation. 

Response: NMFS disagrees. The 

Council and NMFS determined that 

Amendment 123 and this final rule are 

consistent with National Standard 5, as 

explained in Section 7.1 of the Analysis. 

National Standard 5 states that 

conservation and management measures 

shall, where practicable, consider 

efficiency in the utilization of fishery 

resources; except that no such measure 

shall have economic allocation as its 

sole purpose. Efficiency under National 

Standard 5 is a broad concept that 

considers efficiency not just in one 

sector or solely in costs but includes 

utilization of fishery resources 

(§ 600.330(b)). This means that, in terms 

of aggregate costs, efficiency becomes a 

conservation objective, where 

conservation constitutes wise use of all 

resources involved in the fishery, not 

just the directed fishery stocks. While a 

perfectly efficient fishery would harvest 

the OY with the minimum use of 

economic inputs such as labor, capital, 

interest, and fuel, these economic 

concerns are not the only aspects to 

consider when analyzing the potential 

impacts of a management action. 

National Standard 5 says the measures 

must consider efficiency but does not 

mandate the most efficient structure. 

Efficiency may be reduced to reach the 

BSAI FMP’s social or biological 

objectives, which includes the reduction 

of bycatch and waste. 

National Standard 6 

Comment 40: NMFS fails to explain 

how the proposed action is consistent 

with National Standard 6 because the 

proposed action would create highly 

restrictive PSC limits for only the 

Amendment 80 sector and would hinder 

the ability of the Amendment 80 sector 

to adapt to the uncertain effects of 

climate change on fish stocks in the 

region. 

Response: NMFS disagrees. National 

Standard 6 states that conservation and 

management measures shall take into 

account and allow for variations among, 

and contingencies in, fisheries, fishery 

resources, and catches. Amendment 123 

and this final rule take into account the 

variability in and contingencies for 

Amendment 80 sector fishery 

operations. The Analysis discusses 

these at length, including the creation of 

table 58 to part 679, which provides for 

yearly flexibility, takes into account 

changes in environmental and other 

factors, and provides for variability. 

Changes in methods used by fishermen 

to avoid halibut PSC are noted as a 

possibility for improving halibut 

avoidance by the Amendment 80 sector, 

in that new developments may help 

make PSC limits less constraining. 

Changes in the environment and 

economics are discussed to the extent 

practicable in the Analysis. Section 3.3 

of the Analysis gives evidence that the 

Amendment 80 sector has been in a 

near-constant state of change during the 

analyzed period and that the way in 

which historical fishery data were used 

for the impact analysis in Section 5.3.2 

should be carefully considered, which 

they were. 

Comment 41: Amendment 123 is 

highly likely to cause the consolidation 

of the majority of Amendment 80 

harvest opportunities into fewer vessels, 

because many vessels will not have 

adequate halibut PSC limits to harvest 

their allocations and may lead to even 

greater consolidation in the fishery, and 

this important factor is ignored by 

NMFS. 

Response: In Section 5.3.2.3 of the 

Analysis, NMFS analyzed the 

practicability of meeting the PSC limits 

considered, including the possibility 

that this action may cause consolidation 

of harvest opportunities into fewer 

vessels in the fishery. In Section 5.3.2.5 

of the Analysis, NMFS recognizes that 

this is a possible outcome and did not 

overlook it. 

Comment 42: The proposed action is 

not consistent with National Standard 6 

because NMFS relies on the ‘‘average’’ 

impact of the proposed action, and this 

does not comply with requirements at 

§ 600.335(b). NMFS fails to consider the 

variations that occur in the fishery and 

the highly variable impacts on the 

Amendment 80 sector. Using average 

PSC use from the years 2016 through 

2019 does not capture the full range of 

inter-annual variability in halibut PSC 

use by the Amendment 80 sector as well 

as the full range of reasons why this 

variability occurs. 

Response: The Council and NMFS 

determined that Amendment 123 and 

this final rule are consistent with 

National Standard 6, as explained in 

Section 7.1 of the Analysis. Here, NMFS 

did not rely on the average impacts in 

its decision-making but considered the 

range of impacts. To account for 

variability and in consideration of a 

range of impacts, NMFS and the Council 

use a matrix of various abundance levels 

derived from two indices and they 


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generate a range of halibut PSC limits. 

Table 58 to part 679 was specifically 

designed to be flexible in response to 

the abundance of the halibut stock. 

The Analysis includes the most recent 

data available at the time of publication, 

and notes that the Council considered 

2016 through 2019 to be the appropriate 

time period to evaluate halibut PSC use 

because it reflects Amendment 80 sector 

operations under their Halibut 

Avoidance Plan and deck sorting, along 

with other available tools to avoid 

halibut and reduce halibut mortality. In 

Section 5.3.2.2.3 of the Analysis, NMFS 

acknowledges that halibut PSC use is 

variable due to a wide range of factors, 

including ocean conditions. Section 

5.3.2.3.2 of the Analysis discusses 

potential impacts of changing 

environmental conditions on the 

practicability of the Amendment 80 

sector to avoid bycatch, particularly as 

it relates to warmer Bering Sea water 

temperatures and spatial patterns of 

target fisheries. Further, Section 5.3.2.5 

of the Analysis notes that external 

factors, such as climate change, are also 

anticipated to have an impact on 

Amendment 80 halibut mortality rates. 

Table 2–5 in Section 2.1 of the Analysis 

describes the variation of PSC use found 

in those years. 

Comment 43: NMFS’s disapproval of 

Amendment 22 to the Mackerel, Squid, 

and Butterfish Fishery Management 

Plan is instructive when analyzing 

consistency with National Standard 6. 

This action is inconsistent with 

National Standard 6 for similar reasons: 

it will result in reduced fishing 

opportunities and inefficiencies without 

conservation need or other rationale; it 

will hinder the Amendment 80 sector’s 

ability to adapt to climate change 

effects; it will reduce flexibility needed 

to respond to shifting and evolving 

markets; and it is likely to cause 

consolidation of the fishery. 

Response: NMFS notes that 

Amendment 22 to the Mackerel, Squid, 

and Butterfish Fishery Management 

Plan (Amendment 22) is from the MidAtlantic Fishery Management Council. 

Amendment 22 would have removed 

vessels from the fishery by regulation to 

consolidate the fleet and NMFS 

disapproved it because there was 

insufficient evidence to support the 

purpose and need and Council’s 

rationale for the action. Each Fishery 

Management Council develops fishery 

management plans and management 

measures independently for the specific 

management goals and objectives for 

each fishery. Therefore, comparison 

across regions, Councils, and fisheries is 

not a useful means of assessing the 

merits of a specific action. Amendment 

22 should be viewed in context and 

based on the NMFS analysis prepared 

for that action. At the time of 

disapproval, NMFS offered five reasons 

for its disapproval in broad terms. Those 

circumstances and the analysis, 

decision, and proposed Amendment 22 

are very different from the 

circumstances, analysis, and decision at 

issue in this action. The disapproval of 

Amendment 22 is neither comparable 

nor instructive to this action. 

National Standard 7 

Comment 44: The proposed action is 

not consistent with National Standard 7 

because it is expected to increase 

Amendment 80 operating costs and 

reduce fishing opportunities in years of 

low halibut abundance. This action is 

not practicable and does not minimize 

costs because NMFS envisions 

bankruptcy as a viable and reasonable 

outcome. NMFS should follow the 

example of disapproved Amendment 22 

to the Mackerel, Squid, and Butterfish 

FMP. That action was found to not be 

necessary for conservation, did not 

solve the perceived race to fish, and 

reduced flexibility through restrictive 

possession limits and, as a result, was 

determined to be directly contrary to the 

intent of National Standard 7. 

Response: NMFS disagrees. The 

Council and NMFS determined that 

Amendment 123 and this final rule are 

consistent with National Standard 7, as 

explained in Section 7.1 of the Analysis. 

National Standard 7 promotes the 

greatest freedom of action in business 

and recreation, to the extent such action 

is consistent with ensuring wise use of 

the resources and reducing conflict in 

the fishery. This action seeks to ensure 

the wise use of the resource by reducing 

halibut PSC when abundance of halibut 

is low. As described in Section 3.3 of 

the Analysis, the Amendment 80 sector 

operates as a cooperative, so when 

operational challenges arise within the 

cooperative, the cooperative may 

implement resolutions and 

improvements. Section 5.3 of the 

Analysis describes how operating costs 

may increase for the Amendment 80 

sector and that the potential for revenue 

decreasing exists. 

Despite the potential for decreasing 

revenue, the Analysis does not conclude 

that the bankruptcy of the fleet is likely 

to occur. The Mid-Atlantic Fishery 

Management Council Illex squid fleet 

action (Amendment 22) referenced by 

commenters would have removed 

vessels by regulation to consolidate the 

fleet, which is a very different type of 

action than this action to implement 

Amendment 123. As explained in 

response to Comment 43, each Fishery 

Management Council develops fishery 

management plans and management 

measures independently for the specific 

management goals and objectives for 

each fishery. Therefore, comparison 

across regions, Councils, and fisheries is 

not useful in this context and the 

disapproval of Amendment 22 is neither 

comparable nor instructive to this 

action. 

Comment 45: The proposed action 

fails to ensure wise use of fishery 

resources or reduce conflict as required 

under National Standard 7. The 

Amendment 80 fishery is responsible 

for a fraction of the overall coastwide 

halibut bycatch. In 2021 and 2022, 

halibut bycatch in the directed halibut 

fishery was at record low amount (in 

pounds) and represented approximately 

10 percent and 9 percent, respectively, 

of total halibut removals from all 

sources. Halibut bycatch throughout the 

coastwide range of the halibut stock is 

at a record low of only 9 percent of total 

halibut removals. 

Response: Halibut bycatch in the 

BSAI accounts for more than half of the 

coastwide total halibut bycatch. In the 

years 2010 through 2019, the 

Amendment 80 sector accounted for 

approximately 60 percent of the halibut 

bycatch mortality in the BSAI 

groundfish sectors (see Table 3–18 in 

the Analysis). By reducing the 

Amendment 80 sector halibut PSC limit 

in years of low halibut abundance, this 

action ensures the wise use of fishery 

resources. Halibut bycatch in the 

directed halibut fishery or by other 

fisheries is outside the scope of this 

action. As explained in response to 

Comment 16, other actions have or will 

address some of that bycatch. The fact 

that it will continue to occur, however, 

does not mean that this bycatch 

reduction action fails to ensure the wise 

use of fishery resources. Otherwise, 

NMFS could never take any discrete or 

incremental action to solve wise use 

concerns in one fishery. 

National Standard 8 

Comment 46: NMFS erroneously 

concluded that this action provides for 

the sustained participation of fishing 

communities and minimizes adverse 

economic impacts on such communities 

while balancing the requirements of the 

Magnuson-Stevens Act. This conclusion 

is not supported by the Analysis 

prepared for this action and does not 

fully consider the significant adverse 

impacts of the proposed action on the 

fishing communities that rely upon the 

Amendment 80 sector. NMFS does not 

analyze the certain and adverse impact 

of the proposed action on communities 

reliant on the Amendment 80 fishery, 


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compared to any benefits to 

communities reliant on the directed 

halibut fishery (which are uncertain). 

Response: NMFS disagrees. National 

Standard 8 requires conservation and 

management measures shall take into 

account the importance of fishery 

resources to fishing communities by 

utilizing economic and social data that 

are based upon the best scientific 

information available in order to 

provide for the sustained participation 

of such communities; and to the extent 

practicable, minimize adverse economic 

impacts on such communities. NMFS 

analyzed the impacts of this action on 

communities in Appendix 1 and in 

Section 5.5 of the Analysis, including 

impacts to communities that rely on the 

Amendment 80 sector as well as other 

communities, including subsistence 

users. While NMFS looked at possible 

benefits to communities that rely on 

directed fishing for halibut, those 

benefits were only seen as a possible 

indirect benefit of this action, as 

increasing allocation to the directed 

halibut fleet is a function of the IPHC 

and outside the scope of this action. 

This action takes into account those 

competing interests and strikes a 

balance among them and among the 

National Standards. 

Comment 47: Much of the analysis of 

community impacts is specifically 

focused on either a single community, 

Saint Paul, or a small group of discrete 

communities. NMFS’s effort to 

reallocate halibut to benefit these 

communities (or Saint Paul 

individually) violates National Standard 

8. 

Response: The Council and NMFS 

determined that Amendment 123 and 

this final rule are consistent with 

National Standard 8, as explained in 

Section 7.1 of the Analysis. The social 

impacts analyzed address a number of 

communities with directed halibut 

fisheries or other impacts and are not 

solely focused on Saint Paul. Saint Paul 

is discussed at length, however, because 

it is within a region with some of the 

highest halibut revenues and halibut 

dependency, meaning the potential 

indirect benefits of this action could 

more significantly affect this specific 

community. Further, as explained in 

response to Comment 31, this action is 

not an allocation, and it does not 

reallocate halibut to communities. The 

purpose of this action is to link the 

halibut PSC limit for the Amendment 80 

sector to halibut abundance. This action 

will minimize halibut bycatch to the 

extent practicable and thus contribute to 

the conservation of the halibut resource, 

especially at times of low abundance. 

National Standard 9 

Comment 48: NMFS provided no 

guidance to the Council or the public on 

the interpretation of the term 

‘‘practicability’’ during consideration of 

this action, as required by National 

Standard guidelines. When Congress 

enacted the term in 1996, it stated that 

Regional Fishery Management Councils 

should make reasonable efforts in their 

management plans to prevent bycatch 

and minimize mortality, but, in so 

doing, could not ban a type of fishing 

gear or a type of fishing. Furthermore, 

Congress stated that practicability 

requires an analysis of the cost of 

imposing a management action. 

Response: Guidance on the 

interpretation of National Standard 9 is 

given in § 600.350, which discusses a 

number of considerations relevant to the 

practicability analysis (63 FR 24212, 

May 1, 1998). As stated in the National 

Standard guidelines, inconvenience is 

not an excuse; bycatch must be avoided 

as much as practicable, and bycatch 

mortality must be reduced until further 

reductions are not practicable. 

Adherence to the National Standards is 

not discretionary, and the Councils are 

required to re-examine the conservation 

and management measures contained in 

their FMPs for ways to reduce bycatch 

on a continuing basis to ensure that 

bycatch is minimized to the extent 

practicable. This action is the result of 

NMFS’s consideration of the costs and 

benefits of the PSC limit reductions at 

low abundance, and while NMFS agrees 

that there may be costs associated with 

the action, those costs do not exceed 

what is practicable. This analysis is 

consistent with National Standard 9, 

including the guidelines and the 

Magnuson-Stevens Act. 

Comment 49: The proposed action is 

feasible and practicable because existing 

halibut avoidance tools are not fully 

utilized within the Amendment 80 

sector. Because of the individual vessel 

discretion inherent in the application of 

existing bycatch reduction tools, 

available data cannot establish the 

extent to which existing tools may, or 

may not, have been fully utilized in 

recent years. The Amendment 80 sector 

could have chosen to not fully use 

available halibut avoidance measures to 

artificially inflate halibut PSC rates to 

improve their argument against this 

action by alleging that further halibut 

reductions are infeasible and 

impracticable. 

Response: NMFS acknowledges this 

comment. 

Comment 50: The proposed action is 

inconsistent with National Standard 9 

because the Amendment 80 sector has 

already reduced halibut PSC usage to 

the maximum extent practicable using 

all available tools. The sector has 

reduced its halibut PSC usage by nearly 

35 percent since 2014. Amendment 123 

would impose substantial operational 

costs at a time when costs are already 

rising, and it does not provide 

additional tools to help the fleet achieve 

the bycatch reductions expected to be 

imposed by this action. 

Response: The Council and NMFS 

determined that Amendment 123 and 

this final rule are consistent with 

National Standard 9, as explained in 

Section 7.1 of the Analysis. The Council 

recommended and NMFS agrees that 

further halibut bycatch reductions are 

practicable through the improved use of 

existing bycatch reduction tools. In the 

Analysis prepared for Amendment 123, 

NMFS acknowledged that the 

Amendment 80 sector has already 

undertaken efforts and expenditures to 

reduce halibut bycatch and that 

dramatic increases in halibut avoidance 

or reductions in halibut mortality are 

not expected using existing bycatch 

reduction tools. However, additional 

incremental improvements are 

anticipated to be realized under lower 

halibut PSC limits and, if not realized, 

the Amendment 80 sector may forgo 

some amount of profitability to continue 

to reduce halibut mortality. 

New bycatch reduction tools are not 

necessary for this action to be 

practicable. The amount of halibut deck 

sorting varied during the 2016 through 

2019 period and decreased in 2020. 

When deck sorting was reported on a 

vessel during any week from 2016 

through 2019, the vessel was deck 

sorting about 70 to 80 percent of halibut 

that were brought onboard the vessel. A 

change occurred in 2020 that resulted in 

the percentage of halibut that were deck 

sorted falling to 61 percent; in 2021 

(through mid-April) the percentage of 

halibut deck sorted was estimated to be 

49 percent. Some have attributed the 

declining use of halibut deck sorting 

after 2019 to lower bycatch of halibut, 

meaning that individual Amendment 80 

vessels did not need to deck sort to 

reduce halibut mortality because they 

were not encountering halibut at rates 

where it was necessary to deck sort. It 

is possible that with under a lower PSC 

limit, the Amendment 80 sector could 

increase their use of halibut deck 

sorting. As illustrated in Section 5.3.2.4 

of the Analysis, the range of PSC limits 

established by the action are expected to 

have differential impacts on 

Amendment 80 firms. Throughout the 

Analysis, NMFS acknowledges that 

there are many factors, including 

choices at the individual firm level and 


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vessel operational level that contribute 

to realized PSC use. 

The amount of mortality reduction 

that may be expected with associated 

increased costs or reduced efficiency 

cannot be quantified with any certainty. 

If substantial reduction in halibut 

mortality is realized, it is likely to be 

derived from the development and 

implementation of new technologies. 

The Council and NMFS considered the 

potential negative economic and social 

impacts to the Amendment 80 sector 

and concluded that this action strikes a 

balance between potential costs to the 

Amendment 80 sector and conservation 

of the halibut resource from reductions 

in bycatch. As explained in the response 

to Comment 71, NMFS has analyzed the 

potential costs associated with meeting 

the new bycatch limits and responded 

to similar comments in Section 8.4.2 of 

the Analysis. The Council and NMFS 

concluded that increased costs do not 

mean that further bycatch reductions are 

impracticable. 

Comment 51: NMFS fails to adhere to 

Magnuson-Stevens Act section 

303(a)(11) because Amendment 123 

prioritizes the minimization of bycatch 

mortality over the minimization of 

bycatch overall, while the statute 

requires the reverse order of priority. 

Response: The purpose of this action 

is to link the halibut PSC limit for the 

Amendment 80 sector to halibut 

abundance. This action minimizes 

halibut bycatch to the extent 

practicable. Bycatch generally refers to 

catching non-targeted fish, while 

bycatch mortality more specifically 

refers to situations where those nontargeted fish die from their capture. 

Minimization of halibut bycatch is a 

purpose of the action, as stated in the 

purpose and need in Section 1.2 of the 

Analysis. Minimization of both halibut 

bycatch and bycatch mortality are 

expected results of the action, in that 

lower PSC limits will require 

Amendment 80 vessels to avoid halibut 

bycatch and, to the extent they cannot 

reasonably achieve further reductions in 

bycatch, use available tools to reduce 

the mortality of the halibut caught. This 

is consistent with the MagnusonStevens Act, including section 

303(a)(11) and National Standard 9. 

Comment 52: The proposed action is 

not consistent with National Standard 9, 

because, as indicated in the Analysis, 

this action could shift the location and 

timing of fisheries, which may result in 

shifts of bycatch. As a result the 

proposed action is not expected to 

reduce the bycatch of other species, 

such as crab, or enhance the resulting 

population or ecosystem effects. The 

impacts on other species were not 

analyzed. 

Response: The Analysis considers that 

there may be shifts in timing and 

location of fishery operations consistent 

with the current operations of bycatch 

avoidance of multiple species and inter 

annual variability in fishing timing and 

location across sectors. Section 3 of the 

Analysis describes crab PSC 

management in the groundfish fisheries 

and the Amendment 80 sector and 

concludes that no change to crab PSC 

management in the Amendment 80 

sector is anticipated. Discussion of 

potential impacts to bycatch rates for 

other species in Section 5.6 of the 

Analysis is theoretical and identifies 

that as a possible result of any bycatch 

action. Section 6.0 describes impacts to 

marine mammals, seabirds, habitat and 

ecosystem. The Analysis does not 

indicate that this action is expected to 

result in increased bycatch of other 

species because this action will not shift 

the timing and location of fishing 

beyond the footprint already analyzed 

and implemented under the current 

management structure. Therefore, 

NMFS does not expect this action to 

increase the bycatch of other species 

beyond levels already encountered 

under existing management measures. 

Comment 53: The Proposed Action 

violates National Standard 9 because it 

will impose substantial economic 

impacts on one fleet (the Amendment 

80 sector), which will result in negative 

net benefits to the Nation. Additionally, 

the economic impacts to the 

Amendment 80 sector are 

underestimated according to the SSC’s 

review of the draft Analysis in April 

2021. 

Response: NMFS disagrees. Under 

National Standard 9, the Council and 

NMFS considered the net benefits to the 

Nation, including a range of economic 

and non-economic impacts. NMFS 

analyzed the impacts of this action on 

the Amendment 80 sector, the halibut 

stock, and the directed halibut fishery in 

Section 5 of the Analysis. Appendix 1 

to the Analysis includes the SIA, which 

evaluated community and regional 

participation patterns as well as 

community level impacts and potential 

impacts to regional subsistence and 

sport halibut fisheries. 

The SSC April 2021 Minutes on the 

draft Analysis noted that the analysis 

provided an adequate discussion of the 

important assumptions that underlie the 

analysis and their implications for 

interpreting the estimated economic 

impacts. However, the SSC’s comments 

indicated that the range of revenue 

impacts may be considerably larger than 

those estimated in the Analysis. This 

implied that uncertainty associated with 

revenue impacts may be higher than 

predicted and that the Amendment 80 

sector’s ability to predict and avoid 

halibut bycatch is uncertain given the 

weak correlation with halibut 

abundance. 

Input from the SSC received in April 

2021 was taken into account in 

subsequent revisions to the Analysis 

during the Council process. Section 5.6 

of the Analysis concludes that 

Amendment 123 is likely to result in a 

negative net economic benefit to the 

Nation; however, after considering the 

totality of potential impacts, including 

quantifiable and non-quantifiable 

economic and non-economic impacts, 

the Council and NMFS concluded that 

Amendment 123’s overall benefits 

outweigh the negative economic 

impacts of this action and that 

Amendment 123 maximizes the net 

benefits to the Nation. 

Comment 54: NMFS fails to consider 

the levels of halibut bycatch that 

currently exist, or that could exist under 

this proposed action, relative to other 

fisheries that have much higher rates of 

bycatch that NMFS has determined are 

fully compliant with National Standard 

9. NMFS’s own National Bycatch Report 

provides summaries of bycatch in each 

region, and in some regions, total 

bycatch exceeds total catch, and yet 

these regions are operating dozens of 

fisheries that NMFS has deemed meet 

the requirement to ‘‘minimize bycatch 

to the extent practicable’’ and are fully 

compliant with National Standard 9. 

Response: Each Fishery Management 

Council develops fishery management 

plans and management measures 

independently for the specific 

management goals and objectives for 

each fishery. Therefore, comparison 

across regions, Councils, and fisheries is 

not a useful means of assessing whether 

this action’s conservation and 

management measure, to reduce bycatch 

at low levels of abundance, minimizes 

such bycatch to the extent practicable. 

Comment 55: When NMFS 

implemented Amendment 111, 

reductions in halibut PSC were also 

considered, but large reductions were 

rejected as too costly. The Amendment 

111 final rule concluded that 

alternatives that would have reduced 

the halibut PSC limit by 30, 35, 40, 45, 

or 50 percent in the Amendment 80 

sector would have come at significant 

economic cost to the Amendment 80 

sector and fishing communities 

participating in the Amendment 80 

fisheries. NMFS proposes to impose 

costs that are 6 to 14 times higher than 

those deemed acceptable in 2015 when 

halibut harvesting opportunities in Area 


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4 are 60 percent higher than they were 

in 2015, and halibut bycatch in the 

Amendment 80 sector is 35 percent 

lower than it was in 2015. NMFS fails 

to acknowledge and provide rationale to 

support its arbitrary and dramatic 

reversal in its rationale for imposing 

such enormously high costs on a single 

fishery. 

Response: The practicability analysis 

and determination for Amendment 111 

were particular to the existing time and 

circumstances at issue there. The 

current analysis was conducted with 

years of additional information after the 

approval of Amendment 111. As a 

result, NMFS has the benefit of 

observing and accounting for the 

sector’s ability to fish under a 1,745 mt 

PSC limit following Amendment 111 

and its ability to adopt and expand 

existing tools for halibut avoidance and 

release to minimize bycatch and bycatch 

mortality during that period. The 

Amendment 111 analysis explained 

why NMFS decided against further 

reductions at that time but did not bind 

future decisions using additional and 

new information. The explanation for 

the determination of practicability 

concerning Amendment 123 is 

extensively discussed in the Analysis 

and includes discussion of Amendment 

111 and its findings (see response to 

comment 8.3–9 on page 319 of the 

Analysis). 

National Standard 10 

Comment 56: NMFS failed to consult 

with the U.S. Coast Guard and industry 

as required under National Standard 10 

to ensure they recognize any impact on 

the safety of human life at sea and 

minimize or mitigate that impact where 

practicable. 

Response: NMFS disagrees. The 

National Standard 10 guidelines 

encourage consultation with the U.S. 

Coast Guard if an action might affect 

safety of human life at sea. This can be 

done through a Council advisory panel, 

committee, or other review of the FMP 

amendment or regulations. The U.S. 

Coast Guard has a seat at the Council 

table and was engaged during the 

Council process for this FMP 

amendment. Throughout the numerous 

years Amendment 123 and this action 

were in development through the 

Council process, a substantial amount of 

public input was received from the 

affected industry sector. 

Economic Impacts 

Comment 57: The proposed action 

will impose certain and substantial 

additional costs ranging from 86 to more 

than 100 million dollars on the 

Amendment 80 sector while only 

providing speculative benefits to the 

directed halibut fishery. NMFS has 

concluded these impacts will result in 

negative net benefits to the Nation. 

Response: NMFS did not conclude 

that Amendment 123 will result in 

negative net benefits to the Nation. 

NMFS analyzed the potential costs and 

benefits of the proposed action in 

Section 5 of the Analysis. The 

quantitative analysis of economic net 

benefits is limited to purely economic 

impacts and does not account for noneconomic or unquantifiable impacts. 

The Council and NMFS weighed the 

potential for the Amendment 80 sector 

to mitigate negative economic impacts 

through operational choices; weighed 

the retrospective estimate of revenue 

impacts included in the Analysis; and 

weighed the non-quantifiable 

conservation, social, and management 

benefits of the abundance-based 

management of halibut PSC. The 

Analysis encompassed consideration of 

estimated economic impacts and 

predicted actual economic impacts and 

potential non-economic impacts of the 

action. NMFS analyzed the range of 

possible economic costs to the 

Amendment 80 sector for the range of 

possible PSC limits at different levels of 

halibut abundance. To the extent the 

Amendment 80 fishery can improve 

implementation of existing halibut 

avoidance and survival strategies, or 

find more efficient ways to avoid 

halibut PSC, the expected costs 

associated with reduced PSC limits may 

be mitigated. As described below, if 

they cannot be mitigated, the Analysis 

provides a comparison of what those 

costs would have been based on 

historical catch and bycatch levels. 

These numbers were created to compare 

costs among the alternatives; they do 

not try to estimate what the actual, 

future costs of reducing bycatch will be. 

The Analysis used an analytical 

approach that produced cost estimates 

by hindcasting past results as if the 

alternatives considered had been in 

effect in previous years and looked at 

the potential effect of the range of PSC 

limits on Amendment 80 revenues in 

past years. Table ES–1–11 on page 42 

(and Table 5–21) of the Analysis 

illustrates the results of the revenue 

analysis at the range of PSC limits 

analyzed. NMFS acknowledges in the 

Executive Summary and Section 5 of the 

Analysis that, based on historical catch 

and bycatch levels, had this action been 

in place in previous years, it could 

result in an average estimated revenue 

reduction for the Amendment 80 sector 

of 100 million dollars or more. 

However, these revenue estimates do 

not represent stand-alone predictions of 

future Amendment 80 revenues under 

each PSC limit; rather, the Council and 

NMFS used these estimates to illustrate 

the potential differences in direction 

and magnitude of impacts among the 

alternatives considered. The revenue 

estimates included in the Analysis do 

not capture behavioral adjustments such 

as changes in targeting, fishing location, 

or other halibut avoidance strategies 

that might have been employed if the 

various PSC limits were in effect during 

those years, nor do they include the 

costs associated with such avoidance 

strategies. The impact estimates are 

‘‘upper bound’’ estimates due to the 

assumption that the Amendment 80 

sector will utilize their entire PSC limit 

despite historic evidence that shows 

that they have not. Further, the 

estimates contained within the impact 

scenarios are not actual impacts, as the 

response of the Amendment 80 sector in 

applying tools such as halibut deck 

sorting and spatial redeployment of 

effort to avoid halibut have not been 

modeled and will affect both halibut 

PSC rates and attainment of TAC, albeit 

with potentially reduced efficiency and 

increased costs of production leading to 

negative impacts on producer surplus. 

Additionally, the revenue estimates 

reported in the analysis do not represent 

the full scope of the economic impacts 

associated with the proposed action 

alternatives (see Section 5.6 of the 

Analysis). The economic impact 

estimates represent the upper bound of 

potential lost harvest opportunity for 

the Amendment 80 sector as compared 

to status quo revenue (Table 5–6 of the 

Analysis). The economic net benefits 

assessment must also be considered 

within the greater context of all relevant 

factors, including distributional 

impacts, human dignity, and equity. 

The Analysis states that the overall 

economic net benefits are expected to be 

negative during future conditions of low 

halibut abundance. However, there are 

instances when there are zero impacts 

estimated on Amendment 80 sector 

revenue such as when halibut 

abundance is relatively high. 

The Council was clear that the 

economic impacts of the alternatives 

should be compared across alternatives 

and within the Amendment 80 sector 

and not used to compare the economic 

costs to the non-quantified benefits to 

the directed halibut fishery. This 

approach is a cost effectiveness analysis, 

which is an economic tool that 

compares alternatives to determine 

which can achieve a desired result at 

the lowest cost. In the Analysis 

prepared for this action, the impacts are 

compared to each other for their relative 

effect of reducing halibut mortality 


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versus their relative scale of the 

potential effects on annual revenue of 

the Amendment 80 sector. 

Analysis of the economic net benefits 

does not imply that the social, cultural, 

or environmental impacts and benefits 

discussed in the Analysis are not 

relevant, nor that they can be excluded 

when considering overall costs and 

benefits. To the contrary, the Analysis, 

particularly Section 5 of the Analysis, 

contains extensive discussion of both 

economic impacts and impacts that 

cannot be assessed monetarily, such as 

social and cultural impacts. 

Benefits to the directed fishery are 

supported by conservation of the halibut 

resource. To the extent halibut PSC can 

be reduced, the conserved biomass may 

be included in the directed fishery catch 

limit, as the IPHC has done since 2017 

under its spawner per recruit-based 

strategy. To the extent such biomass is 

not harvested by the directed fishery, it 

is expected to accrue to the stock, 

resulting in a long-term potential 

increase in the amount of halibut 

available to the directed fishery. 

Comment 58: The proposed action 

will negatively impact the Amendment 

80 sector, crew members, and numerous 

types of support service businesses. 

Members of the Amendment 80 sector, 

a CDQ group, as well as numerous 

companies that support the Amendment 

80 sector, provided specific information 

about the direct negative financial 

impacts to the Amendment 80 sector 

and Dutch Harbor tax revenue, as well 

as a comparison of the benefits to 

halibut crew members and losses to 

Amendment 80 crew members. 

Commenters expect the action to result 

in lost harvesting opportunity for the 

Amendment 80 sector and increased 

costs due to bycatch avoidance, longer 

tows, and processing time that will 

reduce profits and limit the Amendment 

80 sector in its ability to replace or make 

technological upgrades to their vessels 

as they have in recent years. As a result, 

numerous support businesses expect a 

reduction in the demand for their 

services, such as welding, electronic 

support, stevedoring, fuel, packaging 

supplies, general supplies, and/or other 

support services. 

The proposed action will have 

substantial adverse impacts on the 

Amendment 80 sector crew, the 

majority of whom are minorities and 

people of color. As indicated in the 

Analysis, Amendment 80 companies 

that cannot remain viable under this 

action will eventually exit the fishery. 

Amendment 80 vessels provide middle 

class and blue collar American men and 

women career-path jobs, and the painful 

impacts of contraction of the sector will 

be borne by these hard-working 

American fishermen and their families. 

Response: NMFS analyzed the 

impacts of this action, the community 

and regional participation patterns in 

the Amendment 80 fishery and the BSAI 

halibut commercial fishery, and the 

potential community level impacts of 

this action in Section 5 and Appendix 

1 of the Analysis. The Analysis 

included a qualitative analysis of 

potential downstream economic impacts 

and a quantitative analysis of potential 

revenue impacts to the Amendment 80 

sector. The analytical approach used to 

evaluate the impacts to the Amendment 

80 sector is described in Section 5.3.1 of 

the Analysis. The Analysis notes there 

may be an impact to the Amendment 80 

sector if they cannot reduce their 

halibut bycatch, but the exact financial 

amount could not be determined as 

Amendment 80 companies did not share 

their financial data for a detailed 

analysis. 

In any event, the revenue impacts are 

only one portion of the analysis that the 

Council considered in selecting the 

preferred alternative. The Council 

considered the impacts of alternative 

ranges of halibut PSC limit reductions 

on: (1) the halibut stock, (2) directed 

halibut fishery participants and 

communities that are engaged in 

directed halibut fisheries in the BSAI 

and in other Areas, and (3) BSAI 

groundfish fishery participants and 

communities that are engaged in the 

BSAI groundfish fisheries. In particular, 

Section 5.5 on Social and 

Environmental Justice summarizes 

results of Appendix 1, the SIA, which 

evaluates community and regional 

participation patterns in Amendment 80 

fishery (including minority population 

demographics) and the Area 4 halibut 

commercial fishery as well as potential 

community level impacts from the 

alternatives. The Council considered the 

detailed information provided in the 

analysis for the proposed action. 

The costs associated with avoiding 

halibut are discussed quantitatively and 

qualitatively throughout the document, 

particularly in Section 5.3.2.3 of the 

Analysis, where it is stated that all of 

the measures that could be implemented 

to reduce halibut mortality would have 

a cost to the fleet and the increased 

costs limit how those tools can be 

implemented while keeping the fleet 

economically viable. The gross or net 

cost directly associated with reducing 

halibut mortality is not estimated in the 

analysis. 

The Analysis did not incorporate 

generally understood but poorly 

quantified economic multipliers that 

would allow for an estimate of the total 

economic contributions of the 

Amendment 80 fishery or the directed 

halibut fishery in terms of output, 

income, employment or other economic 

measures. The broad, downstream 

economic impacts of commercial fishing 

can be understood and appreciated 

without drawing an equivalency 

between metrics or existing studies that 

have fundamentally different scopes. 

Comment 59: In the Analysis, NMFS 

used different methods to generate the 

revenue estimates for the Amendment 

80 sector and the directed halibut 

fishery sector. Revenues are estimated 

separately using different methodologies 

and are meant to compare impacts 

across alternatives within each sector 

and should not be used to compare 

impacts across sectors. By using 

different methods, NMFS has made it 

impossible to measure benefits of this 

action or compare the impacts across 

sectors. 

Response: NMFS explains the revenue 

estimation methodology in Section 5.3.1 

of the Analysis and why it is the best 

available data. The methodology used to 

estimate revenue impacts was reviewed 

on several occasions by the Council’s 

SSC, and the SSC concurred with the 

methodology used in the Analysis, as 

noted in the SSC Minutes from May 

2021 (see ADDRESSES). The SSC 

concurred with the assessment of the 

inappropriateness of comparing revenue 

impacts across the two sectors and 

recommended that estimated revenue 

impacts be used only for comparing 

across alternatives for a given sector and 

not for comparing impacts across 

sectors. The SSC was concerned that, in 

its current form, reporting revenue 

estimates for each fleet would invite 

readers to make inaccurate comparisons 

across fleets and suggested the analysts 

consider whether it may be better to 

provide no estimate than a misleading 

one. In comparing the alternatives, it is 

not necessary to be able to directly 

compare the revenue impacts between 

the two fleets; it is merely necessary to 

compare the relative impacts of each 

alternative on each affected fleet. 

Comment 60: NMFS should have used 

the most complete available dataset that 

included the years 2010 through 2021 

for estimating impact revenues to the 

Amendment 80 sector. This wider range 

of years better reflects environmental 

and operational conditions than the 

dataset used by NMFS. Using the 

dataset that narrowly includes 2016 

through 2019 does not consider the 

effects of annual variation and events 

that significantly influenced the 

proportion of the halibut PSC limit used 

in 2016 and 2017. These events include 

the 45 percent reduction in flatfish 


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harvested in 2016 than in the previous 

4 years by the Alaska Groundfish 

Cooperative and the limited fishing by 

three Fishing Company of Alaska 

vessels in the first quarter of 2017. 

Response: As discussed in the 

Analysis in Section 5.3.2.2, NMFS did 

not rely on a single dataset; rather, the 

analysis includes a number of different 

datasets and potential outcomes, as well 

as their likelihood of accurately 

representing future outcomes. After 

extensive input from the public, the 

affected industry, and the Council’s 

SSC, NMFS concluded that the 2016 

through 2019 dataset is likely the best 

predictor of potential revenue impacts 

for the reasons stated in the Analysis. 

Data from years prior to Amendment 

111’s implementation (that is, prior to 

2016) have higher PSC limits and less 

PSC avoidance behavior, meaning the 

2016 through 2019 period is likely to be 

more reliable in predicting future results 

under lower PSC limits and more PSC 

avoidance behavior. As described in 

Section 5.3.2.2.3 of the Analysis, NMFS 

recognizes that the analytical approach 

used to quantify potential revenue 

impacts to the Amendment 80 sector is 

only representative of the time period 

analyzed and it does not incorporate 

fishing adaptations or behavioral 

changes that may occur in the future 

since those are too speculative to 

predict. Additionally, the 2016 through 

2019 dataset was not considered in 

isolation. 

Comment 61: The resampling 

approach used in the Analysis to 

estimate revenue impacts to the 

Amendment 80 sector assumes 100 

percent of the Amendment 80 sector’s 

halibut PSC limit is used each year. In 

reality, however, the Amendment 80 

sector does not use 100 percent of its 

halibut PSC limit and has not done so 

for the last 10 years. The result of this 

evaluation of economic impacts grossly 

overstates the likely effects on 

Amendment 80 sector revenues, and 

even lower PSC limits in times of low 

halibut abundance (as considered under 

Alternative 4 in the Analysis) are viable 

and appropriate. 

Response: As explained in Section 5.3 

of the Analysis, NMFS agrees that the 

economic impact estimates represent 

the upper bound of potentially forgone 

catch and revenue impact as compared 

to status quo revenue because this 

action will reduce halibut PSC at times 

of low halibut abundance. The Council 

and NMFS concluded that the results 

are most easily understood by showing 

100 percent use to illustrate maximum 

adverse impact. Section 5.3.2.1 of the 

Analysis provides a detailed discussion 

on the assumptions and evaluation on 

the assumption that 100 percent of the 

PSC limit would be used. Forecasting 

fleet behavior under a constraining PSC 

limit is a challenge in analyses 

considering alternative PSC limits; thus, 

in this case, the Analysis includes an 

estimate of the maximum adverse 

impact. 

The revenue estimates reported in 

Section 5.3.2 of the Analysis compare 

the estimates of different alternatives 

under the same scenarios to inform the 

reader of the relative difference in 

direction and magnitude of the 

alternatives. As stated in the Analysis, 

these results are not stand-alone 

predictions of future Amendment 80 

revenues under each PSC limit 

established by this action. A limitation 

of this analytical approach is that 

estimates reflect only the environmental 

conditions and fishing behavior that 

occurred during the past 10 years. The 

Amendment 80 sector is expected to 

make strategic choices in harvesting 

behavior (i.e., prevalence of halibut 

avoidance strategies such as deck 

sorting) that are different from the 

randomized or stratified random 

selection of hauls used in the Analysis. 

Given reductions in PSC limits and 

expected operational changes such as 

increased deck sorting, it is most likely 

that future PSC use will be similar to 

what has been seen in the years since 

2015 (i.e., estimates using 2016 through 

2019 or 2017 through 2018 data are 

most likely to represent future PSC use). 

Revenue data for 2020 and beyond were 

not available when the Analysis first 

analyzed revenue impacts. NMFS did 

not subsequently include revenue data 

for 2021 because Amendment 80 sector 

operations, along with other fisheries in 

Alaska, were negatively affected by 

COVID–19 mitigation measures and 

pandemic-related upheavals in 

international supply chains and 

markets. 

Comment 62: The Analysis provides 

only a cursory consideration of the 

potential impact of the proposed action 

on cooperative dynamics and misstates 

the potential viability of the 

Amendment 80 limited access fishery. 

The proposed action will effectively 

eliminate the Amendment 80 limited 

access fishery as a viable management 

option. 

Response: The Amendment 80 

proposed rule (72 FR 30052, May 30, 

2007) states that the Council 

recommended the Amendment 80 

Program specifically to discourage 

fishing practices that accelerate the race 

for fish in the Amendment 80 limited 

access fishery, and requiring a QS 

holder to fully commit to a cooperative 

would provide additional incentives to 

achieve the Amendment 80 Program’s 

objectives. The Amendment 80 Program 

was implemented in 2008. Since 2010 

there has been no participation in the 

Amendment 80 limited access fishery 

and the regulations implementing the 

Amendment 80 limited access fishery 

remain unchanged by this final rule. 

The amount of Amendment 80 halibut 

PSC assigned to the Amendment 80 

limited access fishery will continue to 

be determined as specified in 

regulations at § 679.91(d)(3). 

Comment 63: This action will benefit 

Alaska communities because the 

directed halibut fishery is largely 

prosecuted by community-based vessels 

supporting Alaska-based families and 

businesses, many times with few 

income-producing alternatives. By 

contrast, the Amendment 80 sector is 

composed of large Seattle-based factory 

trawlers doing nearly all of their rigging, 

supplying, and support services in the 

state of Washington, leaving a minimum 

of monetary exchange onshore in 

Alaska. The high level of Alaskan 

ownership of the directed halibut fleets 

means that most halibut fishing 

revenues and earnings are spent locally 

on goods and services generating 

benefits for local economies. 

Response: NMFS acknowledges the 

support for this action. See the 

responses to comments under the 

‘‘Economic impacts’’ and ‘‘Directed 

Halibut Fishery’’ headings for additional 

discussion of the expected impacts of 

this action on the Amendment 80 sector 

and the directed halibut fishery, as well 

as the responses under the ‘‘National 

Standard 4’’ heading for a discussion of 

state residency. 

NEPA 

Comment 64: The Analysis fails to 

utilize a wealth of available and highly 

relevant scientific information on how 

climate change in the Bering Sea will 

affect the Amendment 80 sector’s ability 

to catch its target species under the 

lower PSC levels of the proposed action. 

Response: NMFS is aware of the rapid 

ecosystem changes in the Bering Sea 

ecosystem and the impacts this has had, 

and will continue to have, on the spatial 

extent of the Amendment 80 fishery. 

Section 5.3.2.3.2 of the Analysis 

provides a summary of the potential 

impact of warming Bering Sea waters on 

flatfish CPUE as targeted by the 

Amendment 80 sector and resultant 

halibut PSC. This summary notes that 

there is considerable variation in halibut 

mortality rates by week, and the greater 

use of deck sorting to reduce mortality 

in years when halibut could not be 

avoided makes drawing conclusions 

difficult. The Analysis also includes a 


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section (Section 6.4) on the status of the 

ecosystem, and the Ecosystem Status 

Report is incorporated by reference into 

the Analysis. Climate change 

uncertainties can be inferred from 

different time frames used in the 

analysis and the discussion of 

uncertainties in halibut population 

dynamics. See Section 8.4.3 on page 381 

of the Analysis Comments on Climate 

change/Greenhouse gas emissions for 

additional information. NMFS 

acknowledges that changes in the 

distribution and abundance of fish 

stocks due to climate change may affect 

all sectors of the fishing industry to 

varying degrees going forward, and we 

do not expect the lower halibut PSC 

limits due to this action will measurably 

increase those effects for the 

Amendment 80 sector. 

Comment 65: NMFS should have 

written a supplemental EIS, as there is 

ample, significant new information that 

indisputably bears on the proposed 

action and its impacts, requiring 

supplementation of the Analysis. Such 

information includes relevant 

Amendment 80 sector and halibut 

fishery data for the years 2020, 2021, 

and 2022 and consideration of the 

implications of recent red king crab 

biomass changes on the fleet’s ability to 

avoid halibut. The Analysis should have 

evaluated whether a reduced red king 

crab PSC limit will influence halibut 

bycatch rates. 

Response: NEPA implementing 

regulations at 40 CFR 1502.9(d) instruct 

agencies to prepare supplements to 

either draft or final environmental 

impact statements if: (1) the agency 

makes substantial changes to the 

proposed action that are relevant to 

environmental concerns; or (2) there are 

significant new circumstances or 

information relevant to environmental 

concerns and bearing on the proposed 

action or its impacts. 

Not every change requires a 

supplemental EIS; only those changes 

that cause significantly different effects 

from those already studied require 

supplementary consideration. The 

Supreme Court directs that ‘‘an agency 

need not supplement an EIS every time 

new information comes to light after the 

EIS is finalized. To require otherwise 

would render agency decision-making 

intractable.’’ Marsh v. Oregon Nat. Res. 

Council, 490 U.S. 360, 373 (1989). On 

the other hand, if a major Federal action 

remains to occur, and if new 

information indicates that the remaining 

action will affect the quality of the 

human environment in a significant 

manner or to a significant extent not 

already considered, a supplemental EIS 

must be prepared. Ultimately, an agency 

is required ‘‘to take a ‘hard look’ at the 

new information to assess whether 

supplementation might be necessary.’’ 

Norton v. S. Utah Wilderness All., 542 

U.S. 55, 72–73 (2004). 

NEPA implementing regulations at 40 

CFR 1502.9(d)(4) stipulate that an 

agency may find that new circumstances 

or information relevant to 

environmental concerns are not 

significant and therefore do not require 

a supplement to an EIS. 

NMFS issued its Analysis in 

December 2022; some of the information 

the commenter references was not 

available to NMFS during the 

development of the Analysis. NMFS 

considered relevant fishery data for the 

Amendment 80 sector and directed 

halibut fishery in approving 

Amendment 123 and developing this 

final rule. Based on this public 

comment, NMFS assessed the 

information from the years 2020, 2021, 

and 2022 that were not available prior 

to the publication of the Analysis on 

December 9, 2022. NMFS concluded 

that this new information is not of a 

scale nor scope that requires NMFS to 

supplement the EIS. The new 

information does not indicate that the 

action will affect the quality of the 

human environment in a significant 

manner or to a significant extent not 

already considered in the Analysis. 

Therefore, a supplemental EIS is not 

necessary. 

Comment 66: The purpose and need 

statement is unlawfully narrow and 

forecloses the consideration of viable 

alternatives. By narrowing the purpose 

in this fashion, the Analysis forecloses 

the consideration of other types of 

bycatch reduction that, if needed, may 

be more rational, as well as forecloses 

consideration of revised or new halibut 

bycatch limits for any other fisheries or 

sectors or by any U.S. West Coast 

fisheries (that also have halibut 

bycatch). 

Response: NMFS disagrees that the 

purpose and need statement is too 

narrow, thereby foreclosing the 

consideration of reasonable alternatives. 

In the Analysis, NMFS considered and 

analyzed five alternatives, including 

three options. Throughout the lengthy 

public Council and NEPA processes 

(described in Section 1.3 of the 

Analysis), many other ideas were 

considered and eliminated. Specific 

alternatives that were considered but 

not carried forward are noted in the 

Analysis in Section 2.8, including the 

reasons they were not further analyzed. 

The commenter did not offer other 

alternatives to the proposed action, and 

alternatives considering halibut PSC 

limits for other fisheries are outside the 

scope of this action but, as noted above 

in response to Comment 16, separate 

actions have been taken to address 

halibut PSC in some other fisheries. 

The purpose and need statement was 

crafted after substantial consideration 

by the Council and NMFS. It is 

reasonably tailored to meet the 

identified conservation needs, while 

balancing other equities. Agencies have 

considerable discretion in defining the 

purpose and need for their proposed 

actions, provided that they are 

reasonable. A purpose and need 

statement is unreasonable if the agency 

defines it so narrowly as to allow only 

one alternative from among the 

environmentally benign options in the 

agency’s authority, such that the 

Analysis becomes essentially a 

formality. A purpose and need 

statement can also be unreasonable if 

the agency draws it so broadly that an 

unreasonably large number of 

alternatives would accomplish it, and 

the project would collapse under the 

weight of the possibilities. The agency 

must strike a balance between the two, 

as NMFS has done here. 

Comment 67: Although the purpose 

and need statement erroneously says 

that the proposed action ‘‘could also 

promote conservation of the halibut 

stock,’’ NMFS’s findings elsewhere in 

the Analysis foreclose that possibility 

altogether. 

Response: NMFS disagrees that its 

findings in the Analysis foreclose the 

possibility of conservation of the halibut 

stock. This action promotes 

conservation of the stock by reducing 

the Amendment 80 sector’s halibut PSC 

limit in the Bering Sea under conditions 

of lower halibut abundance, and that 

conclusion is supported in the proposed 

rule and the Analysis. Although the 

IPHC is responsible for the management 

of the coastwide halibut stock, NMFS 

implements regulations that apply to the 

harvest of halibut including establishing 

halibut PSC limits in NMFS-managed 

groundfish fisheries under the 

Magnuson-Stevens Act in the BSAI FMP 

and Federal regulations. It is 

appropriate to use the MagnusonStevens Act definition for ‘‘conservation 

and management,’’ at section 1802(5) to 

consider whether the reduction of PSC 

promotes conservation of a fishery 

resource, such as the halibut stock. That 

definition does not define conservation 

separately and notes that the term 

‘‘conservation and management’’ refers 

to all of the rules, regulations, 

conditions, methods, and other 

measures: (1) which are required to 

rebuild, restore, or maintain, and which 

are useful in rebuilding, restoring, or 

maintaining, any fishery resource and 


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the marine environment; and (2) which 

are designed to assure that a supply of 

food and other products may be taken 

and that recreational benefits may be 

obtained, on a continuing basis, are 

irreversible or long-term adverse effects 

on fishery resources and the marine 

environment are avoided, and that there 

will be a multiplicity of options 

available with respect to future uses of 

these resources. The Magnuson-Stevens 

Act does not assume that conservation 

means keeping a managed resource in 

an unfished state, since its conservation 

and management requirements are 

focused, in simple terms, on 

maintaining the resources for the benefit 

of the Nation through achieving 

optimum yield, while preventing 

overfishing and minimizing bycatch. 

Where the annual Amendment 80 

sector halibut PSC limit is reduced 

under conditions of lower halibut 

abundance, the overall halibut bycatch 

is reduced. This bycatch reduction 

measure helps maintain the fullyutilized halibut fishery resource and the 

marine environment and is designed to 

ensure that, on a continuing basis, a 

supply of food and other products may 

be taken and recreational benefits may 

be obtained. Further, the reduction of 

Amendment 80 halibut PSC limit at 

lower halibut abundance levels helps 

ensure that irreversible or long-term 

adverse effects on the halibut fishery 

resources and the marine environment 

are avoided and that there will be a 

multiplicity of options available with 

respect to future uses of these resources. 

As noted in the proposed rule, halibut 

PSC limits in the groundfish fisheries 

overall provide a constraint on halibut 

PSC mortality and promote conservation 

of the halibut resource. 

Because the annual catch limit for the 

directed halibut fishery is established by 

the IPHC, it is uncertain whether the 

result of this action will benefit the 

long-term status of stock itself or 

directly benefit the directed halibut 

fishery. That result will mostly depend 

on actions of the IPHC. Due to historical 

IPHC practices, NMFS expects that the 

IPHC may establish higher catch limits 

for the directed halibut fleet to the 

degree that this action results in 

conserved halibut. This expectation is 

merely a prediction of likely impacts of 

this action, and the action does not 

depend on that result. To the extent that 

this action results in an overall 

reduction in halibut mortality in the 

BSAI management area, NMFS expects 

this to benefit the halibut stock. 

Comment 68: The Analysis does not 

consider a reasonable range of 

alternatives. The Council and NMFS 

unreasonably and unlawfully rejected 

reasonable alternatives, including those 

that would cause far less harm. NMFS 

unlawfully failed to consider other 

reasonable alternatives, such as (1) other 

mechanisms for reducing halibut 

bycatch and (2) other fisheries and 

sectors that have significant halibut 

bycatch. The public should have been 

given an opportunity to, at the very 

minimum, review and consider at least 

one alternative that would have 

addressed halibut bycatch in a broader 

array of sectors and fisheries. 

Response: The Council and NMFS 

considered a wide range of alternatives 

during the development of Amendment 

123. NEPA does not require an agency 

to explicitly consider every possible 

alternative to a proposed action. Under 

NEPA, NMFS can eliminate alternatives 

to FMP amendments prior to conducting 

a comprehensive review of such 

alternatives, as long as rationale is 

provided for its decision. 

In the Analysis, five alternatives and 

three options were analyzed to meet the 

purpose and need, and many other 

alternatives were considered but 

eliminated from further analysis 

through the extensive period of 

development for Amendment 123 (see 

Section 2 of the Analysis). These 

alternatives were developed over 

numerous years with extensive input 

from the public through Council 

process. The Council and NMFS at one 

time considered including other fishery 

sectors but chose to focus on the 

Amendment 80 sector for this action. 

Section 1.3 of the Analysis explains the 

rationale for why this action is limited 

to the Amendment 80 sector. In short, 

the Amendment 80 sector comprises the 

majority of the annual halibut PSC 

mortality in the BSAI groundfish 

fisheries. 

Comment 69: The Analysis fails to 

address incomplete or unavailable 

information under 40 CFR 1502.22. For 

example, the Analysis fails to consider 

fishery data for 2020, 2021, and 2022, 

and when evaluating environmental 

justice impacts, NMFS stated that no 

recent information from secondary 

sources on sector-wide catcher/ 

processor crew demographics is readily 

available. The Analysis does not address 

the incomplete or unavailable 

information giving rise to these 

recognized uncertainties. NMFS 

acknowledges that other categories of 

information are unavailable but fails to 

perform analysis for them as required. 

Response: NMFS noted in the 

Analysis where there was incomplete, 

unavailable, and uncertain information 

to inform the effects analysis. NEPA 

requires that the EIS contain highquality information and accurate 

scientific analysis, and, if there is 

incomplete or unavailable relevant data, 

the EIS discloses that fact. 

The regulation cited by the 

commenter (40 CFR 1502.22) requires 

that when an agency is evaluating 

reasonably foreseeable significant 

adverse effects on the human 

environment in an EIS, and there is 

incomplete or unavailable information, 

the agency must make clear that such 

information is lacking. If the unavailable 

information is essential to the analysis 

and can be obtained without 

unreasonable effort or cost, the agency 

should obtain it; if such information is 

essential and the agency cannot obtain 

it, the agency needs to state the 

information is unavailable, whether its 

relevant, and give a summary of the 

existing information and state the 

agency’s evaluation of the current 

information based upon approaches or 

research methods generally accepted in 

the scientific community. 

The Analysis meets all requirements 

of NEPA and its implementing 

regulations. Throughout the analyses, 

NMFS clearly discloses where 

information is lacking, unavailable, or 

incomplete. If such information could 

not be obtained, NMFS explains the 

approach taken in the Analysis using 

the information available to the agency. 

No extra analysis is required. 

Comment 70: The Analysis’s cursory 

treatment of cumulative effects is 

insufficient and unlawful by including 

only those involving halibut, while 

ignoring other cumulative effects that 

may affect the Amendment 80 sector. 

The Analysis has not but should have 

considered additional impacts to fishing 

communities and the Amendment 80 

sector due to: (1) an increasing 

likelihood that the Area 4 catch limits 

will not be fully harvested; (2) increased 

challenges in maintaining halibut 

fishery processing operations 

throughout Area 4 that have historically 

relied on offsetting costs with crab 

processing; (3) changes in distribution 

of Area 4 halibut deliveries; (4) 

additional crab bycatch management 

measures; (5) potential establishment of 

National Marine Sanctuaries near the 

Pribilof Islands; (6) climate change; (7) 

future IPHC actions; and (8) other 

factors including inflation, tariffs, and 

the market and supply disruptions due 

to the war in Ukraine. 

Response: As explained in response to 

Comment 65, NEPA requires agencies to 

consider and give a hard look at the 

cumulative impacts of proposed actions. 

NMFS did so in Section 5.8 of the 

Analysis (see ADDRESSES). Cumulative 

impacts are effects on the environment 

that result from the incremental impact 


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of the action when added to other past, 

present, and reasonably foreseeable 

future actions. Some of the actions cited 

by commenters occurred so close in 

time to the Analysis (e.g., inflation and 

other market disruptions), were still 

under consideration and development 

by the Council and/or NMFS (e.g., crab 

bycatch measures), or occurred after 

publication of the Analysis (e.g., 

potential establishment of a National 

Marine Sanctuary and future IPHC 

actions) that they could not reasonably 

be considered and were therefore not 

‘‘reasonably foreseeable.’’ As noted 

above, NMFS considered whether some 

of these new circumstances warranted 

supplementing the EIS and concluded 

they do not. 

Other actions and accompanying 

analyses (such as directed halibut 

fishery catch) commenters cite were 

incorporated by reference either from 

other analyses or from other sections of 

the Analysis. In particular, the IPHC’s 

setting of directed fishery catch limits is 

noted as a reasonably foreseeable future 

action in this analysis, but in 

conjunction with other direct impacts of 

this action, is not considered to be 

cumulatively significant. 

Some of the actions commenters cite 

are so uncertain or in such early stages 

of development that the impacts cannot 

be considered ‘‘reasonably foreseeable’’ 

and/or there is not enough information 

for a meaningful analysis. For further 

discussion on Climate change, 

considerations are addressed in the 

responses to Comments 26 and 64. 

Comment 71: In violation of NEPA, 

NMFS failed to consider the additional 

economic impact from increased cost 

recovery fee percentages as a result of 

reduced harvest opportunity expected 

under this action. Specifically, the 

Analysis acknowledged that the 

Amendment 80 sector is subject to cost 

recovery fees as a portion of its ex-vessel 

revenue for costs directly related to the 

management of the fishery. However, 

because the proposed action would 

significantly reduce the amount of 

harvests in the fishery and the expected 

value to the fishery, Amendment 80 

sector participants would expect to pay 

considerably higher percentage of their 

ex-vessel revenue to meet their required 

cost recovery payments. This is not 

analyzed in the Analysis, but effects on 

cost recovery fees are recognized in the 

proposed rule. 

Response: In Section 5.9.1 of the 

Analysis, NMFS discussed and 

considered the Amendment 80 cost 

recovery fee program. NMFS 

implemented the Amendment 80 cost 

recovery fee program on February 4, 

2016 (81 FR 150, January 5, 2016). The 

Magnuson-Stevens Act section 304(d) 

limits total cost recovery fees to three 

percent of the ex-vessel value for a 

fishery, which is consistent with the 

maximum fee percentage as 

implemented in regulations applicable 

to the Amendment 80 fee program at 

§ 679.95 that remain unchanged by this 

action. Additionally, Section 3.3.2 of the 

Analysis discusses cost recovery in 

several places and provides fee 

information from fiscal year 2017 

through fiscal year 2020. 

Comment 72: NMFS violated NEPA 

and the Administrative Procedure Act 

(APA) by arbitrarily modifying the 

following true statement that was 

included in the draft Analysis to imply 

an opposite conclusion, without any 

factual support or rational explanation: 

Because of the efforts and expenditures 

already undertaken by the sector, dramatic 

increases in halibut avoidance or reductions 

in mortality are not expected with the tools 

that are currently available to the fleet. Some 

marginal improvements are anticipated to 

continue to be realized, especially if halibut 

limits are further reduced and the fleet 

forgoes some profitability to reduce halibut 

mortality further. Reductions in halibut 

mortality are expected to result from the 

[Amendment 80] sector increasing costs or 

reducing efficiency. 

Response: The statements made in the 

draft Analysis and the Analysis 

prepared for this action are not 

significantly different. NMFS modified 

and clarified the language from the draft 

Analysis text referenced by the 

commenter in the Analysis in response 

to public comments. The Analysis adds 

that reductions in halibut mortality in 

the Amendment 80 sector could also 

come from ‘‘. . . improving the use of 

existing tools.’’ As required by NEPA, 

changes from the draft to final Analysis 

are documented and can be located in 

Section 8.8 on page 392 of the Analysis. 

While a number of substantive changes 

are detailed, Analysis Section 8.8 notes 

that edits were made throughout the 

document for clarification, in response 

to public comments, or both, and not all 

of them were expressly identified in 

Section 8.8. NMFS does not consider 

the change to imply an opposite 

conclusion from the draft text and does 

not therefore consider it a substantive 

change to the document. The clarified 

text found in the Analysis Section 

5.3.2.5 states the following: 

Efforts already undertaken by the sector 

have shown that increases in halibut 

avoidance or reductions in mortality are 

possible with the tools that are currently 

available to the fleet. Additional 

improvements are anticipated to continue to 

be realized, especially if halibut limits are 

further reduced and the fleet forgoes some 

amount of profitability to reduce halibut 

mortality further. Reductions in halibut 

mortality that are realized are expected to 

result from the sector increasing costs or 

reducing efficiency. The amount of mortality 

reductions cannot be quantified with any 

certainty. If substantial reductions in halibut 

mortality are realized, they are likely to be 

derived from the development and 

implementation of new technologies. 

Directed Halibut Fishery 

Comment 73: There is no FMP for the 

management of halibut. 

Response: True, there is no FMP for 

halibut because the halibut stock is 

managed by the IPHC under the 

Convention. The Council and NMFS 

have the authority to develop and 

implement regulations under the 

Halibut Act, including limited access 

regulations that are in addition to, and 

not in conflict with, IPHC regulations. 

The Council and NMFS manage 

groundfish fisheries under FMPs 

pursuant to the Magnuson-Stevens Act. 

Section 1.1 of the Analysis discusses 

how the IPHC and NMFS manage 

halibut. 

Comment 74: There is no rational 

basis for NMFS’s continuing prohibition 

on the Amendment 80 sector’s ability to 

retain and sell the halibut it catches 

below the PSC limits. 

Response: Removing halibut from the 

list of prohibited species or changing 

the provisions regarding the prohibition 

on retention would involve a departure 

from longstanding policy and is beyond 

the scope of this action. Section 1.1 of 

the Analysis discusses how the IPHC 

and NMFS manage halibut. This section 

discusses prohibition on the retention of 

a category of species that are valuable to 

other users and fully utilized by them, 

known as ‘‘prohibited species.’’ That 

category includes salmon, herring, crab, 

and halibut. Through the FMP process 

and regulation, NMFS and the Council 

have determined that the capture of 

species in this category must be 

avoided, and they prohibit their 

retention except when authorized by 

other law. 

Comment 75: The halibut stock is 

considered to be stable and not subject 

to overfishing or overfished by the 

IPHC, even though those terms are not 

applicable to halibut because it is not 

managed under the Magnuson-Stevens 

Act or an FMP. The halibut stock 

declined in the 1990s to approximately 

2012. After 2012, the stock’s spawning 

biomass stabilized around 100,000 mt 

and has remained stable since 2012. 

Response: NMFS acknowledges this 

comment. The halibut spawning stock 

biomass has remained stable since 2012 

at a historically low level. 

Comment 76: The proposed action 

will not result in any identifiable 


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economic, social, or cultural benefits to 

the directed halibut fishery. 

Response: The relationship between 

this action’s PSC limit reductions and 

benefits to the directed halibut fishery is 

complex and depends on a number of 

factors, as discussed in Section 5.4 of 

the Analysis. NMFS expects that there 

may be benefits to the directed fishery 

resulting from reduced halibut PSC by 

the Amendment 80 sector. NMFS 

considered benefits to other 

communities and users. Benefits from 

conserved halibut are likely to be 

indirect instead of direct, due to the 

limited scope of the action, and because 

the IPHC annually establishes halibut 

catch limits applicable to each 

regulatory area. Impacts to 

communities, including social and 

cultural impacts, as well as impacts to 

Alaska Native and subsistence users, are 

considered in Section 5.5.2.1.5 of the 

Analysis. 

Comment 77: Halibut is not fully 

utilized in the BSAI. The fact that 

utilization rates (percent harvested) in 

the Area 4 halibut fishery are at a record 

low of 66 percent is not addressed or 

analyzed by NMFS. 

Response: The total allowable catch 

for halibut is completely assigned to 

user groups; thus, it is considered fully 

utilized. Halibut is targeted by 

commercial, recreational, charter, and 

subsistence users. The IPHC allocates 

halibut to achieve Total Constant 

Exploitation Yield or TCEY. Halibut is 

thus fully utilized even though a portion 

of the commercial harvest allocation 

may not be fully harvested every year. 

A portion of the distributed TCEY 

within Area 4 goes unharvested each 

year for a number of reasons. The exact 

amount of unharvested quota varies 

from year to year, area to area, and 

depending upon how data is aggregated. 

The IPHC compiles harvest figures 

annually in the Fisheries Data Overview 

presented at the Annual Meeting at the 

end of January. The following portion of 

the total catch limits were harvested in 

2022 by Area: 4CDE (Bering Sea) = 91 

percent; 4B (Central & Western 

Aleutians) = 49 percent; and 4A (Eastern 

Aleutians) = 80 percent. 

The largest proportion of halibut that 

remained unharvested in Area 4 is in 

Area 4B, and there is a smaller amount 

of quota remaining unharvested in Area 

4A. These areas represent remote 

sections of the Western Aleutian 

Islands. Fishing in Area 4B is usually 

inconsistent, resulting in directed 

fishing vessels spending a higher 

amount on fuel not only to find halibut 

but to reach the fishing grounds. 

Further, there is very little to no 

infrastructure out in the Western 

Aleutian Islands to support a directed 

halibut fishing fleet resulting in vessels 

having to return to Dutch Harbor to sell 

fish and resupply. 

Comment 78: Halibut is culturally, 

socially, and economically important to 

Alaska residents, a value that cannot be 

captured monetarily. The proposed 

action can help coastal communities 

and fishermen secure other directed 

fishing opportunities and be more 

diversified, a critical step as U.S. 

fisheries face growing climate impacts 

and uncertainty. The small-boat halibut 

fishery is the cultural and economic 

lifeblood of Saint Paul, Alaska. It is a 

critical source of employment (both 

direct and indirect). It is also an 

important and historically significant 

subsistence fishery that is key to Saint 

Paul Island’s cultural heritage and wellbeing. Saint Paul identifies with this 

ancient resource: the halibut harvest— 

and sharing the bounty with the 

community—is an irreplaceable cultural 

touchstone. An abundance-based PSC 

limit more fairly distributes 

conservation limits so as not to 

jeopardize coastal community 

participants in the directed halibut 

fishery in the BSAI area. 

Response: NMFS acknowledges this 

comment. 

Comment 79: In 2015, the commercial 

IFQ and CDQ catch limits in Area 4 

were 3.815 million net pounds. In 2022, 

the commercial IFQ and CDQ catch 

limits in Area 4 were 5.1 million net 

pounds. This improved harvest 

opportunity is nearly four times greater 

than the harvest opportunities 

envisioned under Amendment 111 even 

though the overall abundance of halibut 

on a coastwide basis has not changed 

substantially since 2015. 

Response: This action is expected to 

minimize halibut mortality, and it may 

result in additional harvest 

opportunities for subsistence and 

recreational fishermen, and commercial 

halibut fishermen in Area 4. This action 

does not modify allocations of halibut 

under the IFQ Program or the CDQ 

Program. Since 2015, the amount of 

halibut harvested in Area 4 has 

remained fairly constant; however, the 

IPHC survey indices (i.e., the estimated 

all-sizes WPUE time series) for Area 4 

have shown a downward trend. While it 

may be true that there is an increase in 

the Area 4 halibut catch limits from 

2015 to 2022, these data points are the 

low and high points in the time series, 

and this comparison fails to examine the 

yearly harvest across this time series, 

which varies drastically. As with catch 

limits, there is also a lot of variation 

within the amount of halibut harvested; 

however, 2022 saw the lowest harvest 

from 2015 to 2022 in Area 4 with only 

3.37 million net pounds harvested, well 

below the average TCEY for this time 

period of 3.71 million net pounds. 

Comment 80: Canadian halibut catch 

limits are too high. NMFS should stop 

giving Canada too many fish. 

Response: Halibut catch limits 

apportioned to Canada are determined 

by the IPHC and are outside the scope 

of this action. 

Comment 81: Amendment 123 will 

benefit halibut users in IPHC Area 2A 

because reducing bycatch of small 

halibut in the Bering Sea will benefit the 

halibut stock and support migration into 

IPHC Area 2A. 

Response: NMFS acknowledges 

support for this action. Expected 

benefits to the halibut stock are 

addressed in response to Comment 67. 

Regulatory Process 

Comment 82: It is unclear which 

agency official has been delegated 

authority to approve the Proposed 

Action. The proposed rule is signed by 

Samuel Rauch (Deputy Assistant 

Administrator for Regulations, NMFS). 

The NOA for proposed Amendment 123 

is signed by Kelly Denit, Director, Office 

of Sustainable Fisheries, NMFS. The 

comment extension deadline for the 

NOA is signed by Jennifer M. Wallace, 

Acting Director, Office of Sustainable 

Fisheries, NMFS. The Analysis ‘‘Dear 

Reviewer Letter’’ is signed by Jon 

Kurland, Regional Administrator. 

Response: Two delegations of 

authority are relevant: (1) Department of 

Commerce Directive (DOO 10–15) 

delegates the functions prescribed in the 

Magnuson-Stevens Act from the 

Secretary of Commerce to the NOAA 

Administrator, and (2) NOAA 

delegation 61 (NOAA’s Organizational 

Handbook) delegates to the Assistant 

Administrator for Fisheries authority to 

perform functions relating to the 

Magnuson-Stevens Act. Pursuant to that 

authority, the Assistant Administrator 

issues and approves rulemaking actions, 

including the proposed and final rules. 

The Assistant Administrator authorizes 

subordinates to carry out certain 

ministerial tasks associated with the 

Assistant Administrator’s issuance of 

rulemakings. The commenter refers to 

several ancillary procedural actions 

related to the rulemaking. These 

ancillary actions should not be confused 

with issuance of the relevant rule. 

Comment 83: The Council never 

formally deemed the proposed 

regulations ‘‘necessary’’ or 

‘‘appropriate,’’ as the Magnuson-Stevens 

Act requires. 

Response: It is well documented that 

the Council deemed the proposed 


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regulations to be necessary and 

appropriate in accordance with section 

303(c) of the Magnuson-Stevens Act. In 

the Council Motion C2 Halibut 

Abundance-Based Management (ABM) 

from December 13, 2021, the Council 

deemed proposed regulations that 

clearly and directly flow from the 

provisions of the motion to be necessary 

and appropriate in accordance with 

section 303(c) of Magnuson-Stevens Act. 

Similar language appears in the 

December 2021 Council Meeting 

Summary Report. 

Further, the Council authorized the 

Executive Director and the Chairman of 

the Council to review a draft of the 

proposed regulations to ensure that the 

proposed regulations were consistent 

with its instructions. On October 25, 

2022, the Executive Director sent a letter 

to NMFS notifying it that he and 

Chairman Kinneen reviewed the draft 

FMP amendment text, notice of 

availability, proposed rule, initial 

regulatory flexibility analysis, and 

Analysis and concluded that they were 

consistent with the Council’s action. 

Comment 84: In the proposed rule 

published December 9, 2022, NMFS 

erroneously concluded that Amendment 

123 and the proposed rule are consistent 

with the Magnuson-Stevens Act (87 FR 

75570). NMFS has unlawfully 

predetermined the result of the 

proposed action and rubber-stamped the 

Council’s ill-advised proposal before 

completing review of public comments. 

Response: NMFS disagrees. The 

Council considered, assessed, and heard 

from the public on a number of different 

alternatives before it selected the 

preferred alternative. Further, in the 

Classification section of the proposed 

rule (87 FR 75570 and 75582, December 

9, 2022), NMFS states that the NMFS 

Assistant Administrator has determined 

that the proposed rule was consistent 

with Amendment 123, other provisions 

of the Magnuson-Stevens Act, and other 

applicable laws and was subject to 

further consideration after public 

comment period. It is NMFS’s common 

practice and consistent with applicable 

law to provide such a preliminary 

conclusion when publishing the 

proposed rule (see Magnuson-Stevens 

Act section 304(b)(1)). Because any such 

conclusion is subject to further 

consideration after public comments are 

received and considered by NMFS, 

NMFS did not predetermine the result 

of the proposed action. 

Comment 85: If NMFS proceeds with 

the proposed action, it should be 

implemented no earlier than January 1, 

2025. 

Response: NMFS did not delay 

implementation of this action in 

response to this comment. The Council 

recommended Amendment 123 on 

December 13, 2021, with the clear 

expectation that NMFS implement it as 

soon as possible. In routine reports to 

the Council during its regularly 

scheduled meetings, NMFS provided 

status updates to the Council and the 

public about the ongoing rulemaking 

process, and, after approval of 

Amendment 123 by the Secretary of 

Commerce on March 7, 2023, the 

expected timing of its implementation. 

During those meetings, NMFS informed 

the public that NMFS will implement 

Amendment 123 as soon as possible. 

Other Applicable Laws and Executive 

Orders 

Comment 86: NMFS fails to 

rationalize the enormous costs of the 

proposed action with the requirements 

of E.O. 12866 and E.O. 13563. 

Response: The analysis of potential 

social and economic impacts is covered 

extensively in Sections 5.3 through 5.6 

of the Analysis. In addition, a SIA is 

provided in Appendix 1 to the Analysis. 

These sections provide a thorough 

analysis of those E.O.s and potential 

socioeconomic impacts. 

Comment 87: The proposed action is 

a ‘‘significant regulatory action’’ under 

E. O. 12866 and, therefore, should have 

been reviewed by the Office of 

Information and Regulatory Affairs 

(OIRA), thus NMFS unlawfully failed to 

comply with E.O. 12866. 

Response: As noted in the 

Classification section of this final rule, 

OIRA has determined both the proposed 

and this final rule to be not significant 

for purposes of E.O. 12866 via the 

process outlined in the executive order 

itself and pursuant to all applicable 

laws and guidance. 

Comment 88: The proposed action 

fails to address the statutory Capacity 

Reduction Program (CRP). The CRP was 

a key component in defining the 

parameters and limitations of 

participation in the Amendment 80 

sector and is referred to extensively in 

the Amendment 80 implementing 

rulemaking (72 FR 52668, September 14, 

2007). Section 219(g)(2) of the CRP 

makes clear that the Council should 

‘‘take actions that promote the stability 

of [the non-pollock BSAI groundfish 

fisheries] consistent with the goals of 

this section and the purposes and 

policies of the Magnuson-Stevens 

Fishery Conservation and Management 

Act.’’ 

Response: NMFS agrees that the CRP 

defines parameters and limitations of 

participation on the Amendment 80 

sector. The CRP, as part of a 

consolidated appropriations bill, made 

available capacity reduction funds to 

certain sectors, defining those sectors/ 

subsectors (including Amendment 80) 

and eligibility criteria. To this end, 

NMFS did not address the CRP, as this 

action has nothing to do with the CRP 

funding, definitions, or eligibility 

criteria. Further, section 219(g)(2) of the 

CRP, which was enacted in the 

Consolidated Appropriations Act of 

2005 (Pub. L. 108–447; 118 Stat. 2890; 

Dec. 8, 2004) provides the Council 

should continue on its path toward 

rationalization of the BSAI non-pollock 

groundfish fisheries, complete its 

ongoing work with respect to 

developing management plans for the 

BSAI non-pollock groundfish fisheries 

in a timely manner, and take actions 

that promote stability of these fisheries 

consistent with the goals of this section 

and the purposes and policies of the 

Magnuson-Stevens Act. The Council 

and NMFS have completed those 

actions and any claim to the contrary is 

well beyond the scope of this action. 

Comment 89: The proposed action 

violates the Information Quality Act 

(IQA) because NMFS is using thirdparty data (i.e., IPHC data) to make 

decisions that have a large impact on 

the public without showing how the use 

of this data complies with the IQA. For 

example, NMFS does not describe how 

it will review IPHC survey results, how 

it will determine the data is of ‘‘known 

quality,’’ how it will determine the 

data’s consistency with NOAA’s 

information policy guidelines, or how 

the limitations of the data will be taken 

into account and disclosed. 

Response: NMFS disagrees. The IQA 

directed the Office of Management and 

Budget (OMB) to issue guidance to 

Federal agencies for ensuring and 

maximizing the quality, objectivity, 

utility, and integrity of information 

disseminated by Federal agencies. 

Pursuant to OMB guidance, NOAA 

issued guidelines specifically for NOAA 

information to ensure quality of 

information, an important management 

objective for NOAA and NMFS. The 

Agency’s information quality guidelines 

are not intended to prevent the use of 

reliable outside information or full 

utilization of the best scientific 

information available. Use of third-party 

information from either domestic or 

international sources, such as the IPHC, 

is a common practice in NMFS. IPHC 

scientists are highly-trained, 

independent specialists. Their work is 

reviewed at least twice a year by the 

IPHC Scientific Review Board, as well 

as an external review conducted every 

3 years. All findings of peer reviews are 

openly discussed in public meetings 

and published online. As specified in 


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regulations at § 679.21(b)(1)(i)(B) 

governing the annual procedure for 

establishing the halibut PSC limit for 

the Amendment 80 sector, NMFS will 

annually receive and review the indices 

of halibut abundance produced by the 

IPHC and publish the resulting PSC 

limit in the annual harvest 

specifications. 

Comment 90: The proposed action is 

facially arbitrary and capricious, in 

violation of the APA. It nonsensically 

premises a halibut bycatch reduction 

measure on a metric that has little or no 

correlation to halibut bycatch, intends 

to improve results at low abundance 

states but then regulates all abundance 

states including one (very low) that has 

never been observed, fails to explain 

rejection of proposed options to adjust 

the alternatives, and fails to sufficiently 

analyze the action and its consequences. 

Response: The Council and NMFS 

have conducted extensive analysis and 

consideration in reaching the decision 

on this action, as recorded in the 

Analysis and the many documents 

incorporated into it. Most comments 

regarding assertions of APA violations 

are addressed in other applicable 

response sections, e.g., Response to 

Comment 72. This action is wellsupported and reasonable for the 

circumstances addressed. 

Notably, the action’s purpose and 

need statement required selection of a 

suitable means of determining halibut 

abundance. The best available science 

resulted in selection of the two indices 

included in this action. Since those 

indices are intended to measure 

abundance, not bycatch, any lack of 

correlation with bycatch does not affect 

their suitability. The goal of the action 

is to link the Amendment 80’s PSC limit 

to halibut abundance, which essentially 

means that the annual PSC limit will 

vary according to indices of halibut 

abundance, similar to the harvest levels 

of other, regulated users of halibut. The 

fact that past bycatch levels poorly 

correlate to halibut abundance means 

there may be greater costs to reduce 

bycatch when halibut abundance is low, 

i.e., the mere fact that halibut 

abundance is lower may not directly 

translate into lower bycatch levels 

without changes in fleet behavior to 

avoid the bycatch, or there may be 

forgone harvest of groundfish because 

the fleet failed to sufficiently avoid it 

and hit the lower PSC limit. The costs 

and benefits of the action are discussed 

extensively in Section 5 of the Analysis. 

The Analysis also extensively describes 

the alternatives and options considered 

and the reason for selecting this action. 

Comment 91: For the same reasons 

that the proposed action violates the 

Magnuson-Stevens Act, the proposed 

action violates the Halibut Act. 

Response: The comment does not 

raise specific objections with regard to 

the Halibut Act. Therefore, no specific 

response is possible; NMFS maintains 

that this action is consistent with the 

Halibut Act and the Magnuson-Stevens 

Act. 

Changes From the Proposed Rule 

This final rule includes the following 

change from the proposed to final rule 

to address the timing for when the 

abundance indices will be available 

relative to the annual harvest 

specification process. 

At § 679.21(b)(1)(i)(B), NMFS 

removed the word ‘‘proposed’’ from the 

last sentence of the paragraph referring 

to the annual harvest specification for 

BSAI groundfish fisheries. NMFS will 

publish the Amendment 80 sector 

halibut PSC limit from table 58 to part 

679 in the annual harvest specifications 

and it is not necessary to specify 

‘‘proposed.’’ This change is necessary to 

make these new halibut PSC limit 

regulations consistent with the existing 

PSC regulations at § 679.21. 

Additionally, because the final rule 

specifies that the IPHC submit the IPHC 

index to NMFS by December 1 of each 

year, and the proposed annual BSAI 

groundfish harvest specifications are 

prepared prior to December 1 each year, 

the IPHC index may not be available for 

inclusion in the proposed harvest 

specifications each year. NMFS will 

make the indices available to the public 

and the Council when they are provided 

by the AFSC and IPHC. The public can 

apply the indices to table 58 to part 679 

to see the applicable PSC limit for the 

upcoming year prior to the publication 

of the final harvest specifications. 

Classification 

Pursuant to sections 304(b)(3) and 

305(d) of the Magnuson-Stevens Act, the 

NMFS Assistant Administrator has 

determined that this final rule is 

consistent with the Amendment 123 to 

the BSAI FMP, other provisions of the 

Magnuson-Stevens Act, and other 

applicable law. 

NMFS prepared a final EIS (FEIS) for 

Amendment 123 to the BSAI FMP. The 

FEIS for this action was filed with the 

Environmental Protection Agency on 

November 28 and a notice of availability 

was published on December 9, 2022 (87 

FR 75625). In approving Amendment 

123 on March 7, 2023, NMFS issued a 

ROD identifying the selected alternative. 

A copy of the ROD is available from 

NMFS (see ADDRESSES). 

This final rule has been determined to 

be not significant for the purposes of 

E.O. 12866. 

Regulatory Impact Review (RIR) 

An RIR was prepared to assess all 

costs and benefits of available regulatory 

alternatives. A copy of this analysis is 

available from NMFS (see ADDRESSES). 

NMFS implements Amendment 123 and 

the regulatory revisions in this final rule 

based on those measures that maximize 

net benefits to the Nation. Specific 

aspects of the economic analysis are 

discussed below in the Final Regulatory 

Flexibility Analysis section. 

Small Entity Compliance Guide 

NMFS has posted a small entity 

compliance guide on the NMFS Alaska 

Region website (https://alaskafisheries.

noaa.gov/sustainablefisheries/bycatch/ 

default.htm) to satisfy the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, which requires a 

plain language guide to assist small 

entities in complying with this rule. 

Final Regulatory Flexibility Analysis 

(FRFA) 

Section 604 of the Regulatory 

Flexibility Act (RFA, 5 U.S.C. 604) 

requires that, when an agency 

promulgates a final rule under section 

553 of title 5 of the U.S. Code, after 

being required by that section or any 

other law to publish a general notice of 

proposed rulemaking, the agency shall 

prepare a FRFA. The following 

constitutes the FRFA prepared for the 

regulations implementing Amendment 

123. This FRFA incorporates the initial 

regulatory flexibility analysis (IRFA), a 

summary of the significant issues raised 

by the public comments in response to 

the IRFA, NMFS’s responses to those 

comments, and a summary of the 

analyses completed to support this 

action. 

Section 604 of the RFA describes the 

required contents of a FRFA: (1) a 

statement of the need for, and objectives 

of, the rule; (2) a statement of the 

significant issues raised by the public 

comments in response to the initial 

regulatory flexibility analysis, a 

statement of the assessment of the 

agency of such issues, and a statement 

of any changes made in the proposed 

rule as a result of such comments; (3) 

the response of the agency to any 

comments filed by the Chief Counsel for 

Advocacy of the Small Business 

Administration (SBA) in response to the 

proposed rule, and a detailed statement 

of any change made to the proposed rule 

in the final rule as a result of the 

comments; (4) a description of and an 

estimate of the number of small entities 


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to which the rule will apply or an 

explanation of why no such estimate is 

available; (5) a description of the 

projected reporting, recordkeeping, and 

other compliance requirements of the 

rule, including an estimate of the classes 

of small entities which will be subject 

to the requirement and the type of 

professional skills necessary for 

preparation of the report or record; and 

(6) a description of the steps the agency 

has taken to minimize the significant 

economic impact on small entities 

consistent with the stated objectives of 

applicable statutes, including a 

statement of the factual, policy, and 

legal reasons for selecting the alternative 

adopted in the final rule and why each 

one of the other significant alternatives 

to the rule considered by the agency that 

affect the impact on small entities was 

rejected. 

A description of this action, its 

purpose, and its legal basis is included 

in the preamble to this final rule and is 

not repeated here. 

Public and Chief Counsel for Advocacy 

Comments on the IRFA 

An IRFA was prepared in the 

Classification section of the preamble to 

the proposed rule (87 FR 75570, 

December 9, 2022). The Chief Counsel 

for Advocacy of the SBA did not file any 

comments on the proposed rule. NMFS 

has evaluated the two comments 

received from CDQ groups. Those 

comments are discussed above in the 

Comments and Responses section of this 

final rule. 

Two CDQ groups provided comment 

letters and the substantive points of 

those comments were incorporated with 

other similar comments and responded 

to in this final rule. One CDQ group 

commented that they and many others 

advocated more restrictive PSC limits to 

further reduce halibut bycatch. They 

also noted the extraordinary challenge 

the Council faced with determining 

what action to recommend and that the 

process was informed by extensive and 

often divergent written comment and 

testimony. The central theme of their 

comment letter was that they strongly 

urge NMFS to move forward with 

Amendment 123 and this final rule, as 

crafted by the Council, without 

substantive alterations from NMFS. 

The second CDQ group comment 

stressed support for liming halibut 

bycatch and highlighted their efforts to 

do so. However, the comment also 

indicated that the action would impose 

unacceptable costs on the Amendment 

80 sector including their wholly owned 

for-profit fishing subsidiary thus 

adversely impacting their subsidiary. 

The for-profit fishing subsidiary is 

considered a cooperative-affiliated large 

entity. 

NMFS made no changes to the final 

rule in response to the CDQ group 

comments. 

Number and Description of Small 

Entities Regulated by This Final Rule 

NMFS has determined that vessels 

that are members of a fishing 

cooperative are affiliated when 

classifying them for the RFA analyses. 

In making this determination, NMFS 

considered the SBA ‘‘principles of 

affiliation’’ at 13 CFR 121.103. 

Specifically, in § 21.103(f), SBA refers to 

‘‘[a]affiliation based on identity of 

interest,’’ which states: ‘‘Affiliation may 

arise among two or more persons with 

an identity of interest. Individuals or 

firms that have identical or substantially 

identical business or economic interests 

(such as family members, individuals or 

firms with common investments, or 

firms that are economically dependent 

through contractual or other 

relationships) may be treated as one 

party with such interests aggregated.’’ If 

business entities are affiliated, then the 

threshold for identifying small entities 

is applied to the group of affiliated 

entities rather than on an individual 

entity basis. NMFS has reviewed 

affiliation information for Amendment 

80 cooperative members that are 

directly regulated by this action and has 

determined that all directly regulated 

catcher/processors are large via 

cooperative affiliation, with one 

exception discussed below. 

This action indirectly affects the six 

Western Alaska CDQ groups that are 

non-profit corporations, are not 

dominant in the BSAI non-pollock 

fishery, and are specifically identified as 

‘‘small’’ entities in the regulations 

implementing the RFA. The CDQ 

entities have made direct investments in 

fishing vessels by creating wholly 

owned for-profit fishing companies, 

several of which are directly regulated 

by this action. However, as for-profit 

ventures, these companies are not 

automatically defined as small entities 

due to CDQ ownership, and this 

analysis has determined that they are all 

Amendment 80 cooperative-affiliated. 

Thus, while this action directly 

regulates these for-profit CDQ owned 

companies, they are considered to be 

large entities for RFA purposes. 

The thresholds applied to determine 

if an entity or group of entities are 

‘‘small’’ under the RFA depends on the 

industry classification for the entity or 

entities. Businesses classified as 

primarily engaged in commercial fishing 

are considered small entities if they 

have combined annual gross receipts 

not in excess of 11.0 million dollars for 

all affiliated operations worldwide (81 

FR 4469; January 26, 2016). Since at 

least 1993, NMFS Alaska Region has 

considered catcher/processors to be 

predominantly engaged in fish 

harvesting rather than fish processing. 

One additional vessel, the Golden 

Fleece, has been identified as a 

potentially directly regulated small 

entity based on revenue analysis. 

Revenue data for this single small entity 

is confidential. The Golden Fleece is not 

Amendment 80 cooperative or 

ownership-affiliated, as it is an 

independent company. Therefore, the 

Golden Fleece is considered to be the 

only non-CDQ small entity directly 

regulated by this action. 

Based on this analysis, NMFS has 

determined that one catcher/processor 

may be considered small and would be 

directly regulated by this action. NMFS 

has carefully considered whether a 

single entity represents a ‘‘substantial 

number’’ of directly regulated entities. 

When Amendment 80 was enacted, 

there were 27 original issuances of 

License Limitation Permits (LLPs). That 

is the same number of Amendment 80 

LLPs issued currently. The Golden 

Fleece does not hold one of the 27 

original or current LLPs issued, having 

not applied for an Amendment 80 LLP 

to date. Through consolidation and 

vessel replacement, all of the LLPs 

participating in the Amendment 80 

fishery are presently owned by five 

distinct corporations that are all 

cooperative-affiliated large entities. 

NMFS acknowledges that the 

corporations owning the LLPs is the 

proper entity for determining whether a 

substantial number of directly regulated 

entities is affected. 

Description of Significant Alternatives 

Considered to the Final Action That 

Minimize Adverse Impacts on Small 

Entities 

No significant alternatives were 

identified that would accomplish the 

stated objectives for implementing a 

halibut abundance-based management 

via regulation, be consistent with 

applicable statutes, and minimize costs 

to potentially affected small entities 

more than this action. The Council and 

NMFS considered five alternatives 

including three sub-options that could 

apply to all action alternatives. 

The Council recommended and this 

final rule implements Amendment 123 

(Alternative 5) to establish an annual 

process to determine the annual PSC 

limit for the Amendment 80 sector 

based on two indices of halibut 

abundance, the IPHC index and NMFS 

EBS index. Alternatives 2 through 4 


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included use of the same style of index 

table as Amendment 123 but included 

different ranges of halibut PSC limits for 

the various survey index levels. 

Alternative 2 included a range of halibut 

PSC limits from 1,745 mt to 1,396 mt 

(20 percent reduction). Alternative 3 

included a range from 2,007 mt (15 

percent increase) to 1,222 mt (30 

percent reduction). Alternative 4 

included a range from 1,745 mt to 960 

mt (45 percent reduction). 

This action reflects requirements for 

the Council, and NMFS, to balance 

several factors when establishing PSC 

limits, including the likely impacts on 

the halibut stock and affected 

participants in the Amendment 80 and 

directed halibut fisheries. This action 

specifies halibut PSC limits that range 

from 1,745 mt (the previous static 

Amendment 80 halibut PSC limit) to 

1,134 mt (35 percent reduction). This is 

within the range of halibut PSC limits 

considered. The Council and NMFS 

acknowledged that halibut is fully 

utilized in the BSAI and at the medium 

to very low survey index states, the 

Amendment 80 PSC limit should be 

reduced. Under those conditions, 

reduced halibut mortality through lower 

PSC limits is expected to ensure that the 

Amendment 80 sector’s share of the 

overall halibut removals in the Bering 

Sea does not become a larger proportion 

at lower levels of halibut abundance, 

consistent with the Council’s purpose 

and need statement. 

The Council and NMFS appropriately 

considered the Magnuson-Stevens Act 

requirements. This action balances the 

interests of the two largest halibut user 

groups in the BSAI, the directed 

commercial halibut fishery and the 

Amendment 80 sector, by establishing 

abundance-based halibut PSC limits for 

the Amendment 80 sector. This 

abundance-based approach is similar to 

the IPHC’s management approach for 

the directed halibut fisheries off Alaska, 

which establishes annual catch limits 

that vary with established measures of 

halibut abundance. 

Collection of Information Requirements 

This final rule contains no 

information collection (‘‘recordkeeping 

and reporting’’) requirements under the 

Paperwork Reduction Act of 1995. This 

rule does not change existing 

information collections or create new 

information collections applicable to 

directly regulated entities. The 

Amendment 80 sector is subject to a 

comprehensive information collection 

in the form of the Economic Data 

Reporting (EDR) Program enacted in 

2008. The existing collection of 

information requirements for the 

Amendment 80 Economic Data Report 

continue to apply under Office of 

Management and Budget Control 

Number 0648–0564. 

Tribal Summary Impact Statement 

NMFS’s responsibilities for Tribal 

consultations on Federal policies with 

Tribal implications are outlined in E.O. 

13175, Consultation and Coordination 

with Indian Tribal Governments 

(November 6, 2000), the Executive 

Memorandum (April 29, 1994), the 

American Indian and Alaska Native 

Policy of the U.S. Department of 

Commerce (March 30, 1995), the 

Department of Commerce Tribal 

Consultation and Coordination Policy 

(78 FR 33331, June 4, 2013), Presidential 

Memorandum (Tribal Consultation and 

Strengthening Nation-to-Nation 

Relationships) (86 FR 7491, January 29, 

2021), and the updated NOAA Policy on 

Government-to-Government 

Consultations with Federally 

Recognized Indian Tribes and Alaska 

Native Corporations (July 27, 2023). 

Further, section 161 of Public Law 108– 

199 extends the consultation 

requirements of E.O. 13175 to Alaska 

Native corporations. 

Section 5(b)(2)(B) of E.O. 13175 

requires NMFS to prepare a ‘‘tribal 

summary impact statement’’ for any 

regulation that has Tribal implications, 

imposes substantial direct compliance 

costs on Native Tribal governments, and 

is not required by statute. The following 

is a Tribal Summary Impact Statement 

for this final rule. 

Under E.O. 13175 and agency 

policies, NMFS notified all potentially 

impacted federally recognized Tribal 

governments in Alaska and Alaska 

Native Corporations potentially affected 

by this action and supporting analyses, 

as well as of the opportunity to 

comment and respond to the agency’s 

invitation for Tribal consultation on the 

action. 

Description of the Extent of NMFS’s 

Prior Consultation With Tribal Officials 

On August 18, 2020, NMFS mailed 

Tribal consultation invitation letters to 

Alaska Native Tribes, Alaska Native 

Corporations, and Alaska Native 

Organizations (‘‘Alaska Native 

representatives’’). The letter notified 

Alaska Native representatives that a 

preliminary draft Analysis on setting 

annual halibut PSC limits for the 

Amendment 80 sector, based on halibut 

abundance levels (Halibut ABM), would 

be presented to the Council for initial 

review, with an invitation to participate 

in the process and contribute to fishery 

decisions at the October 2020 meeting. 

NMFS and the Council sought public 

input on the Analysis, including 

comments on the alternatives analyzed 

and preliminary results. In addition to 

public participation in the Council 

process, NMFS invited Alaska Native 

representatives to consult with and 

provide comments to the agency 

directly via virtual meeting or by 

telephone. 

On April 26, 2021, NMFS mailed 

Tribal consultation invitation letters to 

Alaska Native representatives. The letter 

notified Alaska Native representatives 

that a draft Analysis evaluating the 

potential effects of the Halibut ABM 

action would be presented to the 

Council for final action at the December 

2021 meeting. The letter invited Alaska 

Native representatives to participate in 

the process and contribute toward final 

management decisions. NMFS included 

information on when the Agency 

expected to publish the draft Analysis, 

further instructions to submit public 

comments on the document (including 

comments on the alternatives analyzed 

and preliminary results), and ways to 

provide additional public input on this 

action, including methods to provide 

such input through the Council process 

prior to the Council taking final action 

in December 2021. In addition to public 

participation in the Council process, an 

invitation for government-togovernment consultation, and ways to 

provide comments to the agency on the 

Halibut ABM action directly via virtual 

meeting or by telephone, was also 

provided by NMFS. 

In September 2021, NMFS, in 

conjunction with the Council, issued 

the draft Analysis. In conformance with 

NEPA requirements, NMFS solicited 

public comment on the draft Analysis. 

NMFS accepted public comments 

during a 60-day public comment period 

from September 6, 2021, to October 25, 

2021. NMFS received 542 letters of 

comment. Of the 542 written public 

comments, NMFS received two letters 

from Alaska Native representatives: 

Aleutian Pribilof Islands Association 

(APIA) and Aleut Community of Saint 

Paul Island (ACSPI). A copy of the 

written comments are available on the 

NMFS Alaska Region Tribal 

Consultation website (see ADDRESSES). 

Additionally, on November 10, 2021, 

NMFS mailed a letter inviting Alaska 

Native representatives to participate in 

a halibut bycatch listening session on 

November 29, 2021, to discuss Halibut 

ABM. NMFS listened to concerns on 

halibut bycatch issues and provided the 

time for Alaska Native representatives 

and NMFS staff to get acquainted. A 

status update and a description of how 

NMFS works with the Council staff on 

fishery management actions was 


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provided. This listening session was 

considered Tribal engagement, not 

government-to-government 

consultation. The listening session 

included the following Alaska Native 

representatives: Kuskokwim Inter-Tribal 

Fish Commission, Kawerak, Inc., Bristol 

Bay Native Association, Association of 

Village Council Presidents, ACSPI, 

APIA, and a native Bristol Bay halibut 

fisherman. Comments from Alaska 

Native representatives are summarized 

in the Halibut Bycatch in Alaska 

Listening Session (November 2021) 

available on the NMFS Alaska Region 

website (see ADDRESSES). 

In 2021, NMFS conducted Tribal 

consultation on the Halibut ABM action 

with Alaska Native representatives that 

expressed interest including the ACSPI 

and APIA, which represents the 

following 13 federally recognized 

Tribes: Native Village of Akutan, Native 

Village of Atka, Native Village of 

Belkofski, Native Village of False Pass, 

Agdaagux Tribe of King Cove, Native 

Village of Nelson Lagoon, Native Village 

of Nikolski, Pauloff Harbor Village, 

Qagan Tayagungin Tribe of Sand Point 

Village, Aleut Community of St. George 

Island, ACSPI, Qawalangin Tribe of 

Unalaska, and Native Village of Unga. 

The purpose was to complete 

consultation between the ACSPI and 

NMFS Alaska Region per the agency’s 

government-to-government relationship 

regarding the Halibut ABM action 

scheduled for final action at the 

December 2021 Council meeting. NMFS 

shared information about the action and 

its potential implementation during the 

meeting but primarily wanted to hear 

and better understand the ACSPI 

perspective regarding Tribal impacts. 

On February 9, 2022, NMFS 

continued the Tribal consultation 

process by mailing Tribal consultation 

invitation letters to the following 19 

federally recognized Tribes and 

representatives that may be impacted by 

the Halibut ABM action: Akutan Native 

Village, Atka Native Village, Village of 

Chefornak, Curyung Tribal Council, 

Native Village of Hooper Bay, Native 

Village of Kipnuk, Native Village of 

Kwinhagak, Native Village of Mekoryuk, 

Newtok Village, Native Village of 

Nightmute, Nome Eskimo Community, 

Nunakauyarmiut Tribe, Qawalangin 

Tribe of Unalaska, Native Village of 

Savoonga, Aleut Community of Saint 

George Island, ACSPI, Traditional 

Village of Togiak, Native Village of 

Tununak, and Twin Hills Village. Each 

agency letter to the Tribal communities 

potentially affected by the Halibut ABM 

action had a link to the website where 

the draft Analysis was posted. NMFS 

also responded to requests from Alaska 

Native representatives for copies of the 

draft Analysis. In addition, NMFS 

provided information on the intent to 

solicit public comment on the proposed 

regulations to implement the action and 

on the notice of availability of the 

Amendment 123. The letter included 

clarification on the action, and, 

although the public comment period on 

the draft Analysis had closed, NMFS 

sought additional input from Alaska 

Native representatives that may be 

affected by the fishery action for the 

development of the Analysis. NMFS 

stated that any additional information 

Alaska Native representatives may wish 

to provide through Tribal consultation 

would be considered and summarized 

in the Analysis. 

On March 4, 2022, NMFS sent a letter 

to the Bering Intergovernmental Tribal 

Advisory Council (BITAC) notifying 

them that the Council took final action 

on Halibut ABM and selected a 

preferred alternative that would 

determine the Amendment 80 PSC limit 

annually based on the most recent 

values from surveys conducted by the 

AFSC and the IPHC. NMFS also notified 

BITAC that during the public comment 

period on the draft Analysis, released in 

the fall of 2021, the U.S. Environmental 

Protection Agency submitted a comment 

letter on the draft Analysis advising 

NMFS that the BITAC may be able to 

provide helpful information on this 

action. NMFS stated in the letter to 

BITAC that the Agency was seeking 

additional input from them as this 

action occurred within the Northern 

Bering Sea Climate Resilience Area. The 

Agency provided a link to the draft 

Analysis and stated that Tribal feedback 

was optional, but any additional 

information that BITAC may wish to 

provide would be considered and 

summarized in the Analysis. 

Additionally, NMFS provided a copy 

of the proposed rule to all potentially 

impacted federally recognized Tribal 

governments in Alaska and Alaska 

Native Corporations to notify them of 

the opportunity to comment or request 

a consultation on this action. 

A Summary of the Nature of Tribal 

Concerns 

Comments from Alaska Native 

representatives are summarized in the 

Halibut Abundance-Based Management 

Consultation Summary Aleut 

Community of Saint Paul Island 

(November 2021) and Summary of 

Tribal Consultation Teleconference to 

Discuss Halibut ABM Concerns with 

APIA (July 2021) available on the NMFS 

Alaska Region website (see ADDRESSES). 

NMFS received one letter from APIA 

providing oral and written public 

testimony on the Halibut ABM action. A 

copy of the oral public testimony on 

April 21, 2021, at the April 2021 

Council meeting (Appendix 1) and 

written comments on March 30, 2021 

(Appendix 2), are also available in the 

Summary of Tribal Consultation 

Teleconference to Discuss Halibut ABM 

Concerns with Aleutian Pribilof Islands 

Association (July 2021) available on the 

NMFS Alaska Region website (see 

ADDRESSES). 

On November 24, 2021, during the 

Tribal consultation between NMFS and 

the ACSPI, a summary of Tribal 

Concerns included: (1) the Halibut ABM 

action decides the future of the 

community of St. George, as it is linked 

to the success of the Saint Paul halibut 

fishery; (2) continued out migration of 

people from the Pribilof Islands to 

elsewhere due to limited economic 

opportunities; (3) more attention needs 

to be paid to coastal fishing 

communities, including Tribal 

members, by NMFS and the Council; (4) 

halibut abundance has declined, 

although bycatch limits have not, with 

cumulative losses to the directed halibut 

fishery of approximately 50 million 

dollars and this information should be 

included in the draft Analysis prepared 

for the ABM action; (5) there are 17 

communities that are categorized as 

halibut-dependent communities in the 

Analysis and those communities should 

be directly involved with NMFS 

regarding this action because it is 

inequitable and unjust that fishery 

communities get the leftovers after the 

establishment of bycatch limits; (6) 

Alternative 4 of the Analysis is the only 

alternative supported by the Aleut 

Community of Saint Paul Island in order 

to restore equity of the resource; (7) 

halibut is not just a Saint Paul issue— 

it is an ecosystem wide issue and all 

communities need halibut from Norton 

Sound to the North Pacific; (8) the 

allocation policy must be addressed 

because it is not appropriate use of the 

public’s resources; and (9) Tribes need 

a voice in halibut management because 

it is an issue of sovereignty related to 

the agency’s government-to-government 

obligations with Alaska Native Tribes 

and Corporations. ACSPI discussed the 

history of halibut fishing in the Pribilof 

Islands, previous related decisions, and 

the current action that were threatening 

their way of life, and encouraged NMFS 

and the Council to implement 

Alternative 4, which would provide 

relief to native families and 

communities, curtail out migration of 

families/residents, and restore the longterm health of the halibut resource. 

During the Tribal consultation 

between NMFS and APIA, a summary of 


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Tribal Concerns included statements 

such as: (1) Alaska Native regional nonprofit consortiums should have the 

same opportunity for Tribal 

consultation as Alaska Native 

Corporations; (2) few Tribes have 

requested Tribal consultation on Halibut 

ABM because the NMFS consultation 

process is difficult to navigate and 

needs improvement; (3) APIA supports 

Halibut ABM Alternative 4, option 3; (4) 

the lack of resource access due to 

Amendment 80 bycatch in the Pribilof 

communities is an environmental 

justice issue; (5) National Standard 5 

(economic efficacy) cannot be the reason 

to continue the halibut allocation policy 

and there is a need to reduce direct 

economic impacts; (6) NMFS did a 

decent job of capturing the negative per 

capita impacts and burdens to small 

communities, but there are more 

impacts to add to the draft Analysis; (7) 

under National Standard 9 (reducing 

bycatch), use of a stringent bycatch limit 

will give Amendment 80 the power to 

do so; (8) halibut are culturally 

important and are critical to subsistence 

and commercial use; (9) direct losses to 

IFQ users, with IFQ quota lowered to 

unsupportable amounts, given this may 

be their only fishery, should be 

included in the Analysis; (10) all of the 

impacts discussed in the Analysis, 

except for groundfish and Amendment 

80, are experienced by users in the 

Pribilof Islands; (11) the Council could 

do a better job describing the impacts to 

various users using a different analysis; 

and (12) NMFS should provide the 

Council with the best available data 

(including information on impact to 

recruitment classes and on current 

abundance and distribution) that allows 

many fishery users, as well as the 

ecosystem benefits of halibut, to 

continue. 

During the November 29, 2021 

Listening Session, a summary of Tribal 

Concerns included: (1) all Alaska Native 

representatives who participated in the 

listening session supported Alternative 

4 for final action; (2) the draft Analysis 

need to consider impacts to all 17 

affected halibut native fishing 

communities; (3) conservation of the 

halibut resource is essential to the socio 

ecological system; and (4) NMFS should 

continue to improve how the agency 

engages under Tribal consultation. 

NMFS also conducted Tribal 

consultations with these entities on July 

16 and November 24, 2021, respectively. 

Specific Tribal concerns conveyed 

during government-to-government 

Tribal consultation are described above 

in the first two paragraphs of this 

section. Alaska Native representative 

comments were also summarized and 

responded to in the Comment Summary 

Report in Chapter 8 of the Analysis, 

which is posted on the NMFS Alaska 

Region website (see ADDRESSES). In 

summary, Tribal Concerns were focused 

on providing relief to native halibut 

fishing families and communities as 

well as needed improvements in NMFS 

Tribal engagement and consultation 

process. Individual detailed summaries 

of the Tribal Concerns listed above are 

available on the NMFS Alaska Region 

website (see ADDRESSES). 

NMFS’s Position Supporting the Need 

To Issue the Regulation 

This final rule is needed to implement 

management improvements to minimize 

halibut bycatch in the Amendment 80 

fisheries. NMFS’s position is stated in 

the Preamble and Response to 

Comments sections. 

Statement of the Extent to Which the 

Concerns of Tribal Officials Have Been 

Met 

From the perspective of a number of 

Alaska Native Tribes and Corporations, 

one of the primary factors in initiating 

this action was concern over the 

impacts of halibut bycatch to local 

Alaska Native fishing communities that 

rely on halibut for subsistence and 

commercial use. While the final fishery 

rule does not reflect the most 

conservative actions advocated by some 

Alaska Native representatives, it will 

minimize bycatch to the extent 

practicable within our authorities. To 

address Tribal concerns that the draft 

Analysis did not include the 17 Alaska 

communities potentially directly 

affected by this action, NMFS, during 

the initial screening criteria for the 

selection of Alaska communities for 

inclusion in the Analysis, identified 29 

Alaska communities, 20 of which are in 

the BSAI region. These communities 

were selected for analysis as potentially 

substantially engaged in, and/or 

potentially substantially dependent on, 

the BSAI Area 4 halibut fishery sectors 

most likely to be directly affected by one 

or more of the proposed action 

alternatives communities. A total of 17 

of these Alaska communities were 

considered halibut-dependent for the 

purposes of our analyses. Of the 17 

Alaska communities identified, 16 are 

home to federally recognized Alaska 

Native Tribes. 

NMFS and the Council have made 

great improvements in conducting 

direct outreach, communication, formal 

Tribal consultation, and informal 

engagement with Alaska Native 

representatives, which include Alaska 

Native Tribes, Alaska Native 

corporations, native organizations, and 

communities over the last few years. 

NMFS and the Council made significant 

efforts to involve Alaska Native 

representatives in the Halibut ABM 

action. In conjunction with the Council 

outreach, NMFS provided information 

to Alaska Native representatives who 

were interested in engaging at each step 

in the process and consulted with 

interested Alaska Native 

representatives, as described in ‘‘A 

Description of the Extent of the 

Agency’s Prior Consultation with Tribal 

Officials.’’ 

As a result of these consultations and 

engagements, NMFS made significant 

improvements to the Analysis and final 

rulemaking to: (1) accurately document 

the importance of the subsistence way 

of life and address resulting deficiencies 

within the suite of Analysis alternatives 

and analyses, and (2) uphold E.O. 13175 

to improve the agency’s Tribal 

consultation process regarding the 

Halibut ABM action. 

NMFS acknowledges the longstanding challenges that Alaska Native 

representatives have had 

communicating with NMFS and 

appreciates the Tribes’ commitment to 

communicating needed improvements 

to the consultation process. NMFS has 

taken several actions over the last year, 

including building staff capacity and 

hosting listening sessions, to improve 

Tribal consultation. 

List of Subjects in 50 CFR Part 679 

Alaska, Fisheries, Halibut, Reporting 

and recordkeeping requirements. 

Dated: November 14, 2023. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs National Marine 

Fisheries Service. 

For reasons set out in the preamble, 

NMFS amends 50 CFR part 679 as 

follows: 

PART 679—FISHERIES OF THE 

EXCLUSIVE ECONOMIC ZONE OFF 

ALASKA 

■ 1. The authority citation for part 679 

continues to read as follows: 

Authority: 16 U.S.C. 773 et seq.; 1801 et 

seq.; 3631 et seq.; Pub. L. 108–447; Pub. L. 

111–281. 

■ 2. In § 679.21, revise paragraph (b)(1) 

introductory text and add paragraphs 

(b)(1)(i)(A) through (C) to read as 

follows: 

§ 679.21 Prohibited species bycatch 

management. 

* * * * * 

(b) * * * 

(1) Establishment of BSAI halibut PSC 

limits. Subject to the provisions in 


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paragraphs (b)(1)(i) through (iv) of this 

section, the following three BSAI 

halibut PSC limits are established, 

which total 1,770 mt: BSAI trawl 

limited access sector—745 mt; BSAI 

non-trawl sector—710 mt; and CDQ 

Program—315 mt (established as a PSQ 

reserve). An additional amount of BSAI 

halibut PSC limit for the Amendment 80 

sector will be determined for each 

calendar year according to the 

procedure in paragraph (b)(1)(i) of this 

section. 

(i) * * * 

(A) General. The Amendment 80 

sector BSAI halibut PSC limit applies to 

Amendment 80 vessels while 

conducting any fishery in the BSAI and 

is an amount of halibut determined 

annually according to the procedure in 

paragraph (b)(1)(i)(B) of this section. 

(B) Annual procedure. By October 1 of 

each year, the Alaska Fisheries Science 

Center will provide the Regional 

Administrator an estimate of halibut 

biomass derived from the most recent 

Alaska Fisheries Science Center Eastern 

Bering Sea shelf trawl survey index. 

Each year, NMFS will request that the 

International Pacific Halibut 

Commission provide to the Regional 

Administrator, by December 1 of that 

year, an estimate of halibut biomass 

derived from the most recent 

International Pacific Halibut 

Commission setline survey index. 

NMFS will apply both halibut biomass 

estimates to table 58 to this part, such 

that the value at the intercept of those 

survey indices in table 58 is the 

Amendment 80 sector halibut PSC limit 

for the following calendar year. NMFS 

will publish the new Amendment 80 

sector halibut PSC limit in the annual 

harvest specifications. 

(C) Allocation of BSAI halibut PSC to 

Amendment 80 cooperatives and the 

Amendment 80 limited access fishery. 

For Amendment 80 cooperatives and 

the Amendment 80 limited access 

fishery, BSAI halibut PSC limits will be 

allocated according to the procedures 

and formulas in § 679.91(d) and (f) (not 

paragraph (b)(1)(i)(B) of this section). If 

halibut PSC is assigned to the 

Amendment 80 limited access fishery, it 

will be apportioned into PSC 

allowances for trawl fishery categories 

according to the procedure in 

paragraphs (b)(1)(ii)(A)(2) and (3) of this 

section. 

* * * * * 

■ 3. In § 679.91, revise paragraphs 

(d)(1), (d)(2)(i), and (d)(3) to read as 

follows: 

§ 679.91 Amendment 80 Program annual 

harvester privileges. 

* * * * * 

(d) * * * 

(1) Amount of Amendment 80 halibut 

PSC for the Amendment 80 sector. The 

amount of halibut PSC limit for the 

Amendment 80 sector for each calendar 

year is determined according to the 

procedure in § 679.21(b)(1)(i). That 

halibut PSC limit is then assigned to 

Amendment 80 cooperatives and the 

Amendment 80 limited access fishery 

pursuant to paragraphs (d)(2) and (3) of 

this section. If one or more Amendment 

80 vessels participate in the 

Amendment 80 limited access fishery, 

the halibut PSC limit assigned to the 

Amendment 80 cooperatives will be 

reduced pursuant to paragraph (d)(3) of 

this section. 

(2) * * * 

(i) Multiply the amount of annual 

halibut PSC established according to the 

procedure in § 679.21(b)(1)(i) by the 

percentage of the Amendment 80 

halibut PSC apportioned to each 

Amendment 80 species as established in 

table 36 to this part. This yields the 

halibut PSC apportionment for that 

Amendment 80 species. 

* * * * * 

(3) Amount of Amendment 80 halibut 

PSC assigned to the Amendment 80 

limited access fishery. The amount of 

Amendment 80 halibut PSC limit 

assigned to the Amendment 80 limited 

access fishery is equal to the amount of 

halibut PSC assigned to the Amendment 

80 sector, as established according to 

the procedure in § 679.21(b)(1)(i), less 

the amount of Amendment 80 halibut 

PSC assigned as CQ to all Amendment 

80 cooperatives as determined in 

paragraph (d)(2)(iv) of this section, 

multiplied by 80 percent. 

* * * * * 

■ 4. Revise table 35 to part 679 to read 

as follows: 

TABLE 35 TO PART 679—APPORTIONMENT OF CRAB PSC AND HALIBUT PSC BETWEEN THE AMENDMENT 80 AND BSAI 

TRAWL LIMITED ACCESS SECTORS

Fishery 

Halibut PSC 

limit in the 

BSAI is . . . 

(mt) 

Zone 1 Red 

king crab PSC 

limit is . . . 

C. opilio crab 

PSC limit 

(COBLZ) 

is . . . 

Zone 1 C. 

bairdi crab 

PSC limit 

is . . . 

Zone 2 C. 

bairdi crab 

PSC limit 

is . . . 

As determined according to § 679.21(b)(1) and the procedures at § 679.21(b)(1)(i). 

Amendment 80 sector ....................................... Annual Determination 1 ..................................... 49.98 49.15 42.11 23.67 

BSAI trawl limited access .................................. 745 .................................................................... 30.58 32.14 46.99 46.81 

1See § 679.21(b)(1)(i) and table 58 to this part for the annual determination process for Amendment 80 halibut PSC limits in the BSAI. 

■ 5. Add table 58 to part 679 to read as 

follows: 


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TABLE 58 TO PART 679—AMENDMENT 80 SECTOR ANNUAL BSAI PACIFIC HALIBUT PSC LIMITS

Survey index ranges Eastern Bering Sea shelf trawl survey index (t) 

Low High 

<150,000 ≥150,000 

IPHC setline survey index in Area 4ABCDE (WPUE) .............................. High ≥11,000 ................................... 1,745 mt 1,745 mt 

Medium 8,000–10,999 ..................... 1,396 mt 1,571 mt 

Low 6,000–7,999 ............................. 1,309 mt 1,396 mt 

Very Low <6,000 ............................. 1,134 mt 1,134 mt 

[FR Doc. 2023–25513 Filed 11–22–23; 8:45 am] 

BILLING CODE 3510–22–P 


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